Musumeci v Woodfield
[2005] WADC 2
•14 JANUARY 2005
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MUSUMECI -v- WOODFIELD [2005] WADC 2
CORAM: BLAXELL DCJ
HEARD: 23-25 NOVEMBER 2004
DELIVERED : 14 JANUARY 2005
FILE NO/S: CIV 1807 of 2003
BETWEEN: ISABELLE MUSUMECI
Plaintiff
AND
LESLIE JOANNE WOODFIELD
Defendant
Catchwords:
Damages - Assessment - Personal injuries - Extent thereof and effect on earning capacity - Plaintiff a 24 year old teacher at time of accident - Soft tissue whiplash injury - Psychological impacts - Turns on own facts
Legislation:
Nil
Result:
Damages assessed at $48,574.62
Representation:
Counsel:
Plaintiff: Mr G Droppert
Defendant: Mr P R Momber
Solicitors:
Plaintiff: Hoffmans
Defendant: Peter Momber
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
CSR Readymix (Australia) Pty Ltd v Payne (1997) Aust Tort Rep 81-432
Graham v Baker (1961) 106 CLR 340
Medlin v State Government Insurance Commission (1995) 182 CLR 1
National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569
BLAXELL DCJ: The plaintiff claims damages for personal injuries sustained in a motor vehicle accident on 1 June 2002. As a result of the accident the plaintiff suffered soft tissue whiplash injuries which she claims have caused significant physical disabilities. The defendant admits liability for negligence but takes issue with the extent of the injuries and their impacts.
Apart from damages for non‑economic loss and for past and future medical expenses, I am required to make an assessment in respect of the plaintiff's claims for loss in earning capacity and for gratuitous services which she received following the accident.
The plaintiff's background circumstances
The plaintiff was born on 20 December 1978 and was 24 years of age at the time of the accident. After completing her schooling she attended Murdoch University as an education student and in 2000 became a prize winning graduate.
Because of the high qualifications she had achieved the plaintiff immediately obtained permanent employment with the Education Department of Western Australia, was not required to serve time in country areas, and was assigned to Kwinana High School. In 2002 the plaintiff went on to obtain a highly prized position as a specialist drama teacher at John Curtin Senior High School. She still held that position as at the date of the accident.
At all material times the plaintiff has been single and residing away from her parents. Prior to the accident she was very physically fit and active. In this regard she attended swimming pools once or twice a week for lap training, regularly participated in an athletic form of yoga, and performed ballet, jazz ballet or contemporary dancing up to three or four times a week.
The plaintiff was also required to be physically active in her employment as a specialist drama teacher. She taught approximately 200 students in seven or eight classes per day, and took each class through "movement warm‑ups" and demonstrated other physical movements which were relevant to their theatre studies.
The accident and its immediate aftermath
At approximately 8.00 pm on 1 June 2002 the plaintiff was with three young male friends and was travelling as a rear seat passenger in a car which was being driven to a party. While the car was stationary at the intersection of Broadway with Stirling Highway, Nedlands, there was an impact to the rear from a car driven by the defendant.
The plaintiff was wearing her seatbelt, but as a result of the impact she recalls:
"… having my head jerked backwards and hitting the seat and then from that moment I am not very clear because I had lost consciousness, but I do recall a very strong hit and a very strong jerking movement where I was whipped … backwards." (T 4)
It is also the plaintiff's evidence that when her head hit the back of the seat she recalls "… my head jerking very far back, so the seat support was resting above my head" (T 37). I understand this evidence to mean that the plaintiff's head went to the side of the headrest rather than directly upon it.
None of the other people in the car received any injuries and the plaintiff herself did not sustain any bruises, abrasions, or other visible marks. The evidence also establishes that the impact damage to the car in which the plaintiff was travelling was relatively minor. It is the plaintiff's evidence that when she regained consciousness:
"The next thing I recall was I was in the car and I had a very strong pain in my head and I couldn't understand what had happened and the other passengers in the vehicle at that stage had already left the vehicle and I got out of the car and went to the side of the road. I crossed the road and I was very disoriented. I couldn't focus." (T 4)
The plaintiff's friends then offered to take her to Sir Charles Gairdner Hospital which was nearby and she was admitted to the Accident and Emergency Section for observation. The plaintiff remained there for approximately eight hours, and apart from being administered pain relief medication did not require any treatment.
The plaintiff's friends then returned to collect her, and she was driven to the party that she had originally intended to attend. The plaintiff arrived there at about 4.00 am and remained until perhaps 6.00 am. She went there rather than to her home because when she left the hospital "I didn't think anything else was wrong with me anymore" and "I wanted to be around people who were supportive" (T 41).
The plaintiff's subsequent symptoms and treatment
It is the plaintiff's evidence that on 2 June 2002, as the day progressed, she started to notice pain in her neck and shoulders, as well as stiffness in her middle and lower back. Later that afternoon she was taken by her sister to Fremantle Hospital where she was examined by a doctor. (There is no evidence as to the results of that examination or as to whether or not any treatment was prescribed.)
The accident had occurred on Saturday 1 June which was a start of a long weekend, and the plaintiff returned to work on Tuesday 4 June 2002. It is the plaintiff's evidence that by that stage she was "very confused" and "still very much in pain" with "a very sore back, very bad headaches and lots of pain and tension behind the eyes" (T 6).
She accordingly attended upon a general practitioner, Dr Tony Robbins, (on 5 June) who found that there was marked muscle spasm and a reduced range of movements in the neck. He prescribed medications for pain relief and referred her for physiotherapy (Exhibit 3).
When seen by Dr Robbins again on 7 June the plaintiff still had a reduced range of neck movements. He recommended the wearing of a soft collar for support, and also certified the plaintiff as being unfit to work for one week.
There was some improvement by the time of the next consultation on 14 June 2002 and the plaintiff accordingly returned to work. However, upon her return she again experienced back pain and headaches as well as nausea and a "pulling tension" in the neck. The plaintiff had particular difficulty in carrying books and equipment around campus. It is also her evidence that she was distracted by the pain symptoms and was unable to meet her students' needs. On 18 June Dr Robbins certified her as being unfit to work for a further week.
On 25 June 2002 the plaintiff was seen by Dr Mary Murphy (who worked at the same general practice). Although, at this time, the plaintiff "had a very good range of neck and back movement" she told Dr Murphy that "what appeared a normal range of movement was quite restricted for her, and that her job requires a greater than normal range of flexibility". Dr Murphy then provided the plaintiff with a certificate for a further two weeks off work (Exhibit 3).
Subsequently the plaintiff decided to consult a different general practitioner, and on 17 July 2002 she was seen for the first time by Dr Craig Turner. Upon examination Dr Turner found that the plaintiff's various cervical movements were restricted to either a quarter or a half of normal. He also found tenderness to be present on the left side of the second to fifth vertebral levels of the cervical spine, and over the entire thoracic and lumbar spines. Dr Turner considered that the plaintiff remained unfit for work.
Thereafter (as I understand the evidence) Dr Turner continued to issue certificates as to the plaintiff's unfitness to work for all but three weeks of the remainder of the 2002 school year. During this period the plaintiff continued to complain of constant pain in the upper shoulders and neck as well as pain in the lower back.
In July 2002 Dr Turner referred the plaintiff for alternative physiotherapy, and in August he also referred her to a clinical psychologist, Ms Diane Bowyer. In a report following three consultations Ms Bowyer described the plaintiff as being "distressed, hyper vigilant and worried". Furthermore, psychometric assessments had indicated that she had severe depression and extremely high levels of anxiety. Ms Bowyer's treatment accordingly focused on anxiety management, and by July 2003 the plaintiff had progressed to the stage that she had made "outstanding" psychological improvements (Exhibit 5.3).
The plaintiff had also returned to full‑time work at John Curtin Senior High School between 14 October and 8 November 2002. It is the plaintiff's evidence that during this period:
"I had a high presence of headaches and also once again neck tension, back, shoulder pain. It was actually quite severe neck pain. … I was sitting down for long periods of time. That tended to exacerbate conditions. I had noticed that I get pins and needles in my bottom and that would radiate down into my legs. I would feel very fidgety and discomforted and I was unable to stay on task concentratedly as I would have been able to in the past. … Having to walk to different classrooms which are all over the place was hard carrying books and files. … On average I'd have 30 students per class and there were students who weren't getting the attention that I would have otherwise given them and I felt that I was unable at that point to meet their educational and emotional needs from their teacher because I was distracted by what was going on physically with me." (T 16‑17)
The plaintiff's subsequent employment
It is the plaintiff's evidence that by the end of the 2002 school year she felt that she was unable to continue in her position as specialist drama teacher at John Curtin Senior High School. Not only did the work exacerbate her symptoms, but she was too exhausted to supervise rehearsals after school, and she in general felt that she was letting down her students.
As a permanent teacher the plaintiff was entitled to apply for one year's leave without pay, and she decided to take this step. Her application was granted but as a result she lost her position at John Curtin Senior High School. The plaintiff also decided that during 2003 she would seek relief teaching which meant:
"… that if I was unable to work on a certain day then the students wouldn't have a teacher missing … so I didn't have to worry about that responsibility at that point. It also meant that I could focus on rehabilitation and healing goals … ." (T 20)
The plaintiff initially obtained relief work at South Fremantle Senior High School but she found this to be quite stressful because she was required to manage children that were "quite violent and disruptive in the classroom". Thereafter she obtained intermittent positions at Wesley College, Burrendah Primary School, St Jerome's College, and Iona Presentation College. As I understand the evidence, the plaintiff was largely able to cope with her symptoms while working at these other schools.
During 2004 the plaintiff obtained an extension of her leave from her permanent position with the Education Department, and she also continued with her relief work. In this regard she had temporary positions at Carmel College and Wesley College, and thereafter worked for an extended period at Cyril Jackson Senior Campus. This last position suited the plaintiff very well because she was required to work from only one classroom and was teaching only 11 adults.
With regard to her future employment, it is the plaintiff's evidence that she will not be seeking any further extension of unpaid leave. She will apply for a permanent full‑time position, preferably in a situation similar to that which she has recently enjoyed at Cyril Jackson Senior Campus.
As at the date of trial, the plaintiff's evidence as to her residual symptoms is as follows:
"I still have pain in my neck. It's certainly not like it was in 2002 and its definitely much more improved than 2003, but I still have pain and tension in neck and shoulders. My lower back I've noticed has reduced somewhat, but it still comes back when I sit down for long periods of time and depending on my posture." (T 28)
The plaintiff's evidence as to the other impacts of her injuries
It is the plaintiff's evidence that she has had difficulty in resuming the various physical recreations which she had enjoyed prior to the accident. About a month after the accident she tried swimming again but found it very difficult to turn her neck and breathe. In this regard:
"I'd almost get to the end of a lap and I'd have to stop. Freestyle was virtually impossible." (T 12)
However, in May 2004 she reattended the pool and performed power walks up and down the lanes. She then started swimming again and has persisted with it (with some difficulty) up until the date of trial.
The plaintiff was unable to resume the same forms of yoga that she had previously enjoyed but towards the end of 2002 she consulted a teacher who specialised in a particular form of yoga suitable for people with injuries. The plaintiff trained intensively with this teacher twice a week during most of 2003. According to the plaintiff these sessions helped her significantly and she "began to feel a lot happier as (her) body started to feel it's movement coming back" (T 14).
The plaintiff has given up her former pursuits of jazz ballet and dancing but has returned to ordinary ballet on a limited basis. In this regard the yoga helped her to resume this activity and she was able to find a new teacher "who was willing to assist me in a therapeutic form of ballet that was on the bar" (T 15).
It is the plaintiff's evidence (corroborated by her sister Ms Tina Musumeci) that for a lengthy period following the accident she was unable to perform ordinary domestic tasks such as cooking, cleaning, washing, mopping and vacuuming. Consequently, her sister and mother attended to many of these needs and they also undertook or assisted the plaintiff with her shopping.
Initially this assistance was provided on a daily basis and averaged a total of 13.5 hours per week. However, over time, the level of assistance has gradually reduced and by early 2004 it was averaging only three to four hours per week.
The medical evidence
Dr Turner is of the opinion that the plaintiff has sustained a moderately severe whiplash injury affecting the soft tissues of her cervical, thoracic and lumbar spine. In coming to this diagnosis he has largely relied on the history that he obtained from the plaintiff. It is Dr Turner's evidence that the symptoms from such an injury generally take a long time to settle.
In April 2004 the plaintiff was examined by the orthopaedic surgeon, Dr Desmond Williams, and he is also of the view that there is a physical basis for her symptoms. Although Dr Williams did not give viva voce evidence at trial, his two reports (Exhibits 7.1 and 7.2) were admitted by consent. In those reports he expresses the opinion that the plaintiff:
"… has had soft tissue injury of the flexion extension type to the cervical and thoraco lumbar spinal areas, with evidence of persisting irritability in the cervical spine and with pathologies defined in the thoraco lumbar spine." (Exhibit 7.1)
In coming to this opinion Dr Williams relied not only on the history taken, but on the results of x‑rays that he arranged. According to him the flexion and extension views demonstrated a limited range of cervical movement based mainly around the C4/5 level, with minimal flexion obtained below C5. The x‑rays also demonstrated "significant mid cervical and lower cervical segmental stiffness".
Dr Williams further observed that there was a scoliosis centred at the T8 mid thoracic area which "may be postural or related to muscle spasms". In the lumbar spine he observed an "asymmetric sclerosis of the superior portion of the right sacroiliac joint".
Dr Williams also noted that Ms Bowyer had documented "significant psychological issues that have emerged post‑injury (which highlighted) the need for appropriate accurate diagnosis and management strategies, which will lessen the consequences of a psychological nature that have emerged from the motor vehicle accident". The management strategies that he envisaged involved "appropriate targeted physiotherapy" over 6‑12 months following which he believed that her problems would resolve.
However, the orthopaedic physician, Dr John H Silver, who first examined the plaintiff in December 2002 (at the request of the defendant) came to a very different opinion. According to Dr Silver:
"This woman may well have suffered a soft tissue whiplash mechanism injury resulting in some muscle spasm following the incident in question, but the entire history suggests that the major problem has been a psychological/emotional reaction, and the functional signs elicited at the clinical examination today suggest that this is the major component of the clinical picture. Indeed there is no evidence that she is suffering from any ongoing clinically significant musculoskeletal or neurological problem. …
I feel that the basis of this woman's symptoms is the psychological/emotional content of them, and I feel that there are psychosocial issues and personality issues underlying this. In these circumstances, it is likely that the problem will become protracted." (Exhibit 6.1)
It is Dr Silver's evidence that when he examined the plaintiff again on 13 June 2003 she displayed similar "functional signs" to those he had observed before. In this regard, although the plaintiff had "a full and free range of neck, back and upper and lower limb movements" while undressing, most of those movements became slow and tentative and were reduced in range during the formal examination. An exception was flexion of the lumbar spine during the formal examination (in respect of which the plaintiff was "hyperflexive to 100 degrees and this was asymptomatic").
Dr Silver's report following his second examination also noted that:
"Despite the full range of asymptomatic lumbar flexion, passive straight leg raising produced complaints of lumbar pain at 75º to 80º on both sides but she was able to sit and lean forwards on the examination couch demonstrating a lumbar flexion/straight leg raising of some 115º.
Following the tentative movements that were demonstrated during the formal examination, she redressed easily and quickly, and bent easily to the floor and indeed crawled to locate and pick up a dropped hairclip that she replaced by fully flexing her neck and reaching to the back of her head to do so." (Exhibit 6.2)
It is Dr Silver's opinion that the plaintiff did initially suffer a soft tissue whiplash mechanism injury to the neck but that "her current symptom complex is a manifestation of a personality/temperament based somatoform disorder that has no organic basis". It is also his view that she is "physically capable of performing any ergonomically sound physical activity to which she would put her mind" and that she requires no treatment directed towards any physical symptomatology. He nevertheless accepts that:
"Perhaps some cognitive behaviour therapy would be of benefit to her in an effort to encourage her to return to a normal life. This, however, is recommended on the basis of her personality/temperament, rather than on the basis of any injury associated with the motor vehicle collision." (Exhibit 6.2)
At all material times Drs Williams and Silver have been aware of each other's differing opinions, and the latter's evidence indicates that there have been many occasions in respect of other patients when they have come to similarly contrary views. In rejecting Dr Silver's opinion, Dr Williams relies upon his findings from the x‑rays which he say demonstrate limitations of movement and "segmental stiffness".
Dr Silver does not accept that the x‑rays demonstrate any physical pathology. To the extent that they show any limitation of cervical movement, his evidence is that the plaintiff "didn't move her neck to the full extent that is possible to move it" (T 107).
Dr Silver also rejected the proposition that "segmental stiffness" in the x‑rays is indicative of abnormal pathology. Whilst standing in the witness box in order to demonstrate his point, Dr Silver testified as follows:
"What Dr Williams is saying is in flexion there is lack of movement in the bottom half of the spine and there is movement at the top half of the spine – in the cervical spine, the neck. He's saying that the lower segments in the neck are not moving as much as the other segments in the neck. This depends on the posture of the patient when the x‑ray is being taken. You can actually flex the head on top of the spine and do that with the chin and that will indicate movement of the upper segments but not the lower segments. If I stand with my side on to you and demonstrate it, you can see what I mean. True neck flexion involves putting the chin on the breastbone. Right? When I ask people when I'm examining to flex their neck, I say, 'Put your chin on your chest here,' and I put my finger on (indistinct) so that they do this. That's a very different movement from this. A normal person – if you took a picture of me standing in this position, I would have what is described here as segmental stiffness in the lower half of the spine and it's as simple as that." (T 136)
Findings of fact
It was readily apparent from Dr Silver's demonstration in the witness box, that the posture adopted by a patient when undergoing an x‑ray will have a direct effect on the appearance of the cervical spine in the film. I found his evidence in this regard to be quite convincing, and I am certainly not persuaded by Dr Williams' reports that the "segmental stiffness" and other observations that he made are indicative of accident caused pathology. Accordingly, I make the finding (as is almost always the position in whiplash cases) that the x‑rays are incapable of establishing whether or not the plaintiff has sustained any soft tissue injuries.
I also have no hesitation in accepting Dr Silver's evidence as to the variations that he observed in the plaintiff's apparently symptom free movements at the time of each of his examinations. I therefore find that there were inconsistencies between the plaintiff's movements whilst undressing and dressing, as compared to her movements during each formal examination. Furthermore her complaints of pain upon limited straight leg raising during his second examination were inconsistent with the range of asymptomatic lumbar flexion demonstrated at other points during that examination.
The only reasonable inference that can be drawn from these facts is that when examined by Dr Silver the plaintiff did not have the physical limitations in cervical and lumbar movements which she claimed.
It does not necessarily follow from this that the plaintiff has given false evidence, and she in fact impresses me as being reasonably genuine in her complaints. However, it is clear that at least since the time of Dr Silver's first examination in December 2002, there has been very little physical basis for the plaintiff's symptomatology, and that her subjective perceptions of limited movements and pain must be attributed to a psychological/emotional reaction of the type that he describes. Bearing in mind the plaintiff's burden of proving the extent of her injuries, I now make the following findings.
As a result of the impact in the accident on 1 June 2002, the plaintiff sustained relatively minor soft tissue injuries to her cervical (and to a lesser extent) to her lumbar spine. These injuries resulted in neck pain, and the onset over the following day of muscle spasm and limitation of spinal movements. These physical problems continued until at least the time of Dr Murphy's examination on 25 June 2002, but by then the plaintiff was found to have a very good range of neck and back movements and there had obviously been some significant improvement.
Notwithstanding this physical improvement, the plaintiff's psychological reaction to her injuries meant that her symptoms continued unabated. It is relevant in this regard that when the plaintiff was later assessed by Ms Bowyer she was found to be "hyper vigilant" and to have extremely high levels of anxiety. Furthermore, the plaintiff had been almost perfectly physically fit prior to the accident, and she appears to me to have the type of personality which makes her less than stoic about even a relatively slight limitation in her physical abilities.
It is clear that the plaintiff's initial physical injuries were the major contributing factor to her psychological reaction, and I accordingly find that her functional symptoms were caused by the accident.
I also find that the plaintiff's accident caused symptoms rendered her unfit for her employment during the periods as certified by her doctors during the 2002 school year. I further find that the plaintiff's accident caused condition justified her decision to take unpaid leave and to pursue relief work during 2003 and 2004. In this regard, I accept that the plaintiff's role as a specialist drama teacher required that she be able to inspire and motivate her students. Her subjective perception of her physical condition, and the psychological impacts of the accident meant that she was unable to do this. I further find that during 2003 and 2004 the plaintiff did all that she reasonably could to find relief employment.
The evidence does not persuade me that the plaintiff's accident caused condition necessitated the full extent of the gratuitous services that she received from her mother and sister. I make the finding that these services were essentially provided because of the mother's and sister's natural love and affection for the plaintiff rather than because of any need for the same. Furthermore, during the extensive periods that the plaintiff was off work she was well positioned to care for herself even if she would have done so with some slowness and difficulty. I nevertheless accept that the plaintiff's symptoms did necessitate a minor level of assistance in the early stages following the accident.
The evidence does not persuade me that the plaintiff has any significant continuing disabilities. Her own evidence is that her symptoms have considerably abated, and there has also been other evidence at trial which should provide the opportunity of some insight as to the causes of her condition to date. In my view it is reasonable to assume that the plaintiff's psychological reaction to the accident and her residual functional symptoms will now rapidly resolve.
The assessment of damages
The plaintiff tendered a schedule of damages at the conclusion of the trial which sets out her calculations of past economic loss, past loss of superannuation benefits, past and future treatment costs, travel expenses, and gratuitous services. Although the defendant disputes it's liability to pay some of these amounts, it does not take issue with the manner of calculation or the rates that are claimed.
Accordingly, on the basis of the factual findings I have made (and after making an adjustment for two months additional interest) I find that the plaintiff is entitled to damages in respect of the following amounts:
Past economic loss $ 37,015.73
Past loss of superannuation benefits $ 6,835.36
Past treatment expenses $ 3,221.45
Past travel expenses $ 502.08
I am not persuaded that the plaintiff will incur any future treatment expenses as a result of the accident, and I consider that it is appropriate to award a global sum in respect of past gratuitous services. In my view a fair assessment of damages for gratuitous services would be the sum of $1,000.
The assessment of damages for the plaintiff's non‑pecuniary loss is governed by the provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943. This requires that I award damages as a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded (currently $257,000).
Having regard to the plaintiff's injuries, the extent of her pain and suffering, and the impact of those symptoms on her amenities and enjoyment of life, I consider that a reasonably generous assessment of the severity of her non‑pecuniary loss would be that it approximates 5 per cent of a most extreme case (viz $12,850). Unfortunately, s 3C also mandates that no damages are to be awarded if the amount of non‑pecuniary loss is assessed to be less than (a current figure of) $13,000. It follows that there can be no award to the plaintiff in respect of her non‑pecuniary loss.
In light of the above the plaintiff is entitled to recover damages for a total sum of $48,574.62, and there will be judgment against the defendant in that amount.
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