Nash v Berton No. DCCIV-99-168

NASH v. BERTON

[2000] SADC 74

His Honour Judge Hume
Civil

Background

This is an action for damages for personal injuries arising out of a motor vehicle accident on 23 February 1996 at Mile End.
The accident occurred at the intersection of Railway Terrace and Richmond Road at about 8:45 am in morning traffic. Both the plaintiff and defendant had been travelling south along Railway Terrace and had reached Richmond Road. It is not disputed that the plaintiff, driving a 1975 Peugeot 504, had stopped within the “turn left at any time with care” lane when the defendant, driving a Pajero four-wheel-drive, collided with the rear of her car. The circumstances and severity of the impact were the subject of evidence.
After the accident the plaintiff drove to her job, as a physiotherapist at Resthaven at Malvern, and worked that day. However, the following day, a Saturday, she felt pain in her neck. She consulted her doctor on Monday 26 February, and has not worked since that time.
The defendant admits liability for the collision, and so the case is one of assessment of the plaintiff’s damages.
The plaintiff alleges that she suffered a flexion-extension (“whiplash”) injury in the accident which is the cause of continuing problems for her. She recited these in her Statement of Claim (item 8) as: pain at the back of the neck which spreads up into the head and develops into a headache; pain associated with lifting things which are heavy; an inability to focus on things; an increase of pain with flexion of the neck; a general reduction of the level of her fitness; and, sadness because of what has happened to her. In her Rule 46.15 Particulars she alleges that the injury has resulted in ongoing neck pain extending to the right ear, blurred vision associated with this pain, and pain extending from her neck down her left arm.
The plaintiff alleges that as a result of the injury she has not been able, and will never be able, to return to work as a physiotherapist in gerontology, has suffered loss of enjoyment of the amenities of life, a diminution of her ability to engage in domestic activities, and has incurred and will continue to incur treatment expenses. She claims damages accordingly.

The plaintiff

The plaintiff was born on 17 September 1945.
It is not necessary for me to recount her history in great detail. It is somewhat involved. In broad outline, she has suffered a number of setbacks in life, including a road accident in England in 1970, in which she suffered a severe whiplash injury and was hospitalised. She gave evidence that she recovered from this injury in about 10 to 12 weeks, after which she returned to work as a physiotherapist, and that she has not suffered any ongoing problems as a result of it.
She went through a divorce in 1983. She received treatment from a psychiatrist for some years up to 1985 for what she described as “a specific type of depression” (xn 10.1-.2)—she denied that this was bipolar disorder. In 1985 she was diagnosed as suffering from Cushing’s Syndrome, caused by a pituitary tumour, and continues to receive hormone therapy as a consequence.
The plaintiff had two children in 1973 and 1975. She resumed work as a physiotherapist part-time in 1976. She seems to have continued in this kind of employment, mostly part-time, up to the time of the accident in 1996, at which time she held two part-time positions, at Gloucester Nursing Home and Resthaven at Malvern. She completed a degree in visual arts at the Underdale CAE during the 1980s.
In 1995, the year before the accident, she suffered a work-related injury to her neck and arm in two separate incidents in April and August. After the second of these, she had some time off work. The plaintiff recalled having two weeks off work, after which she returned to normal duties and was not subject to restrictions.
In February 1998 she was involved in another rear-end collision. She gave evidence that she suffered a brief flare-up in the ongoing symptoms which she alleges resulted from the 1996 accident, the subject of the present action, and that the effect of this further accident resolved in 10 days.

The 1996 accident

The plaintiff gave evidence that she was stationary in the “turn left with care” lane at the Richmond Road intersection when the defendant, driving a Pajero four wheel drive with a “roo bar”, ran into the back of her car. In cross-examination, the plaintiff said she first became aware of the collision when she “felt the bump at the back. Something had obviously run into me.” (xxn 118.9-.10). She could not recall whether her car had been pushed forward. She could not recall whether her head was flung around in the accident, but said that it probably was, given that “whiplash” is a flexion extension injury (xxn 119.4-.5). As for damage to her car, she stated, “Superficially there wasn’t very much, it just looked as if there was a ding in the bumper bar, not very much. But when I took it to the crash repairer, apparently all the chassis had wrinkled up. The boot lid had lifted up and the panels at the side had moved, and I was told there was $2,600 worth of damage to the car, but it was the chassis.” (xn 28.4-.10).
In cross-examination, she described the damage as “a very large ding in the bumper bar” which was just to the right of centre (xxn 208.32-209.7). She did not notice any dent in the rear panel near the boot lid, or any dent in the bumper bar towards the left hand side (xxn 209.11-.20). After the accident, she felt extremely upset but did not feel any pain. Her car was driveable and she continued the journey to Resthaven at Malvern, where she worked that day.
The defendant gave evidence that the traffic conditions at the time of the accident were medium to heavy. He had been queuing behind the plaintiff’s car in the left slip lane to make a left-hand turn into Richmond Road. He stated that, in the course of rounding the corner into Richmond Road, his vehicle and the plaintiff’s car made a series of two or three forward movements, and that the distance between his vehicle and the plaintiff’s during the last two of these movements was between a metre and half a metre. He last stopped his vehicle about halfway around the corner before he collided with the plaintiff’s car. At that point he was watching for traffic on the right and had assumed that the plaintiff had completed her turn into Richmond Road. He felt a “gentle nudge” on coming into contact with the rear of the plaintiff’s car. He stated that he “was driving a medium length four-wheel-drive, would have released the clutch, probably not even touched the accelerator, was at an angle of probably 45 degrees to the back of the plaintiff’s car when [they] stopped” (xn 218.13-.16).
The plaintiff gave evidence that she did not make forward movements in the “turn left at any time with care” lane. Hers was the first vehicle in the queue. As she recalled, she was stationary. She heard no noise to forewarn her of the accident (xxn 117.34).
The defendant gave evidence that after the collision the plaintiff got out of her vehicle, he signalled to her to move her vehicle out of the intersection, she got back into her vehicle and they both stopped and exchanged details about 50 metres east of the intersection on Richmond Road. There appeared to be no damage to his vehicle (xn 219.11). “There was a mark on the left-hand side upright member of my bull bar, approximately—I say approximately because I didn’t measure it against the plaintiff’s car, I subsequently measured it against other Peugeots—there was a small speck of paint or undercoat at approximately the same height as the indentation in the boot lid, that was the only trace of the collision.” (xn 224.9-.16) He noticed some damage to the plaintiff’s vehicle—“at least three if not four, I believe, indentations on the car” (xn 219.23-.24). After moving off, the defendant found himself standing in traffic in the adjacent lane just to the rear of the plaintiff’s car at the Anzac Highway intersection and noted two indentations in the bumper bar, one to the left of the rubber overrider, the other roughly in the centre of the bumper bar, and a dent in the top of the boot lid which he attributed to his car.
The plaintiff could not recall what she did immediately after the collision. She said, “I remember finally getting out of the car, but I don’t recall whether I moved the car, or whether, in fact, the car was still stationary, you know, where it happened.” (xxn 118.26-.30)
The plaintiff tendered a crash repairer’s account for $2,314.91 (Exhibit P4). The account indicates repairs to the rear panel and the boot (lid, frame and floor), the left-hand chassis rail and wheel house, the left-hand rear pillar and the boot hinges.
I do not consider that this degree of damage alone can justify a finding that the impact was severe, bearing in mind that the two vehicles met at an angle of about 45 degrees, which I accept on the defendant’s evidence. The oral evidence of both parties indicates a minor kind of impact, which did not push the plaintiff’s car forward any significant distance and did not involve severe jolting within the passenger compartment. On the defendant’s evidence, which I accept, the plaintiff got out of her car within a short time. The plaintiff could not remember doing so immediately but could remember getting out of the car. Generally, her recollection of the incident was poor. Taking the oral evidence into account, I find that the force of the impact was minor.

Sequelae to the accident

The plaintiff’s evidence was that she first experienced pain on Saturday, the day after the accident. The pain got worse over the course of the weekend and on Monday 26 February 1996 she consulted her general practitioner, Dr Petchell, complaining of bilateral pain in her neck extending down into her shoulders and pain radiating up behind her right ear.
Dr Petchell prescribed physiotherapy and gave her a certificate for a week off work. He later prescribed anti-inflammatory medication. She attended the Muscular Development Fitness Unit at the Memorial Hospital for physiotherapy and ultrasound. The treatment did not help, and her neck “just stiffened up completely over about two weeks.” (xn 29.24-.25) The plaintiff recalled her neck gradually becoming stiffer over this period to a point where it did not move at all. She was concerned about the future of her employment as a physiotherapist and expressed this concern to Dr Petchell and her physiotherapist.
She had X-rays, later an MRI scan, and was referred to Mr Peter Oatey, a neurosurgeon, for an opinion. A letter from Mr Oatey to Dr Petchell dated 26 March 1996, written soon after the consultation, was tendered in evidence (Exhibit D8), but Mr Oatey was not called.
On 1 April 1996 her employment with Gloucester Nursing Home was terminated. The plaintiff stated she was very upset by this.
She described the reason why she was not able to return to work as a physiotherapist at this time as “a lot of pain”, limited movement in her neck and the risk that her condition would pose to those she would need to treat. (xn 36.1-.7)
Improvement came after Easter (5 April in 1996) when the plaintiff began to wear a Philadelphia collar, prescribed by Ms Schirmer of the Muscular Development Fitness Unit. She used ice packs and isometric exercises in conjunction with this. After about three weeks her pain had gone.
Following the settling down of her pain with the wearing of the collar, she underwent a rehabilitation program of exercises and hydrotherapy at the Muscular Development Fitness Unit.
Over the two to three month period between April and the termination of her employment at Resthaven on 28 June 1996, the stiffness in her neck reduced and she regained a degree of movement. However, the range of movement did not return to its pre-accident level and she suffered pain intermittently. She described the restriction in her neck movement as variable, depending upon her activities, and on whether she was suffering pain.
She stated that sometime in 1996 her neck got to a stage when there was no further improvement, but she could not recall when this was. She received sickness benefits from the time of the accident until about January 1999, when she underwent medical assessment and was granted a disability support pension.
She has never worked in a management position in physiotherapy. Her only computer skills are those gained while studying from 1997.
In 1997 she enrolled in a Masters course in visual arts, initially full-time but then part-time, which she completed in two years. In 1999 she enrolled in a PhD course, which she expects to complete in six years, doing about 15 to 20 hours of study per week. Her hours of study are limited by pain in her neck and shoulders. She has a tilt table to assist her in study.
On 28 February 1998 she was involved in another rear-end collision. She stated that this resulted in a flare-up of her neck symptoms for about 10 days.
The plaintiff stated that she cannot now work as a geriatric physiotherapist due to the lack of mobility in her neck and the pain she continues to suffer. To control pain, she continues to use Voltaren - on average about one prescription (50 doses) every two months - and to attend hydrotherapy, which she recommenced early in 1998, having discontinued with it late in 1996.
She suffers restrictions in her general lifestyle through not being able to sit for extended periods of time. This prevents her enjoying her former recreation of going to the theatre. She continues to garden but cannot lift heavy objects without aggravating her neck. She employs a gardener to do heavy jobs, such as pruning. She does her own housework, but with difficulty and often resulting in discomfort with a lot of pain afterwards.

Credibility findings

I found the plaintiff to be unconvincing. She was a poor historian. Furthermore, she was evasive under cross-examination and appeared to be taking great care not to contradict any contemporaneous documentary evidence, part of which she had evidently memorised and even quoted from at one point. I am not convinced that all of what she purported to be her independent recollection was in fact such, and from my observations of her in the witness box I formed the view that she was exaggerating her symptoms.

The medical evidence

Dr David Petchell

Dr Petchell and other doctors in the same medical practice have been the plaintiff’s treating general practitioners since 1981. Two reports by Dr Petchell to the plaintiff’s solicitors, dated 24 May 1996 and 17 June 1996, and two letters to her employer Resthaven of the same dates were received in evidence (Exhibit P1).
Dr Petchell confirmed from clinical notes that the plaintiff had been treated for neck pain on one occasion in 1991, then for a period from 18 August 1995 following the Resthaven incident. On both these occasions, she received X-rays and physiotherapy treatment and had time off work. In August-September 1995 she had five weeks off work from Resthaven and six weeks from Gloucester Nursing Home, after which she returned to work with restrictions. A note dated 30 August 1995 states that her neck showed “little movement in any direction”. Dr Petchell agreed this was similar to her condition in March 1996. On 22 December 1995, after walking a dementia patient, she reported a further, short-lived, episode of neck pain and stiffness. He understood these problems as the serious neck injury in 1970 beginning to manifest itself.
Following the 1996 accident the plaintiff was not treated with anti-depressants, although she was referred to psychiatrist Dr Ed Scanlon, whom she saw during April.
In his report dated 24 May 1996, Dr Petchell outlined in some detail the plaintiff’s treatment history from 26 February 1996 and concluded,
“Obviously prognosis is impossible to determine at this time. Importantly we have gone from an attitude of never being able to work as a physiotherapist to one of a distinct possibility.” (P1, p.14)
He stated in his letter to Resthaven of the same date that she was still unfit to return to work. By 17 June 1996 he wrote to the plaintiff’s solicitors,
“I consider that work as a physiotherapist would be possible with help from support staff in managing dependent patients. On site assessment might be appropriate.” (P1, p.16)
A clinical note dated 26 July 1996 states that physiotherapy “finished two weeks ago”.
In cross-examination, Dr Petchell agreed that the plaintiff’s condition in mid-1996 was essentially the same as before the accident and said that he had thought a return to work with restrictions worth a try. He said that, while this view was appropriate at the time, a return to work was no longer possible now, for the reasons that the plaintiff’s ongoing pain appeared to be triggered by relatively simple activities, coupled with the nature of physiotherapy work and the fact that she had been unemployed for four years. He said that the 1996 musculo-ligamentous injury was still causing the plaintiff’s present symptoms.
Dr Petchell thought there was a “reasonable match-up” between the plaintiff’s reported range of movement and his observations of her to and from the surgery. In November 1999 he did not observe the “gross restriction of movement” which had been present in March 1996.

Mr Lehonde Hoare

Mr Hoare is a specialist surgeon with extensive experience in orthopaedics and spinal injuries. He now works as a consultant. He saw the plaintiff on 15 May 1996 and 9 November 1999 and made two reports, dated 21 May 1996 and 10 November 1999 (Exhibit P1).
On 15 May 1996, almost three months after the accident, Mr Hoare recorded the plaintiff complaining of morning headaches, which were improving, and weakness in her upper limbs. Her neck was not the seat of pain. On examination he found “extreme stiffness” of the neck with about 50 percent loss in overall range of movement and some tenderness posteriorly down each side of the neck extending to the shoulder blades (P1, p.3). He concluded that these symptoms were due to injuries suffered in “quite a severe rear end vehicular crash” (P1, p.4) caused by over-stretching or tearing of the small ligaments and muscles supporting the cervical column. He also noted the plaintiff’s considerable anxiety in relation to her future employment and recommended referral to her treating psychiatrist.
On 9 November 1999, Mr Hoare found an “extremely restricted range of active movement” of the neck (P1, p.9), but no further physical abnormalities or evidence of neurological or vascular deficit. He concluded that the plaintiff’s condition had improved since 1996 but that her neck problems were consistent with injuries suffered in the 1996 accident. He noted “functional overlay here of considerable degree.” (P1, p.10)
In oral evidence, Mr Hoare said that his assumptions about the severity of the impact had been based on the fact that the chassis of the Peugeot 504 had been distorted. He stated that persons referred to him with musculo-ligamentous injury suffer from some degree of discomfort for up to two years, depending upon the severity of the injury, and that some have ongoing pain for even longer. He said,
“If the initial injury is severe enough, I believe it is reasonable to say that there is some ongoing organic problem, but when a person has suffered from pain and discomfort for that length of time, and no doubt some socioeconomic loss, those psychological factors come in and can weigh more heavily as time goes on.” (xn 130.22-.27)

Given the history of incidents in 1970, 1991 and 1995, Mr Hoare stated he would have thought her more prone to ill effect in 1996 than a person who had not previously suffered from a neck injury.
In conclusion, Mr Hoare held the view that the plaintiff’s ongoing symptoms of neck stiffness and pain had an organic basis, namely, scar tissue resulting from the 1996 musculo-ligamentous injury. However, he viewed the severity of her symptoms, including the marked restriction of movement, as attributable to non-organic causes also.

Mr Mark Awerbuch

Mr Awerbuch, a physician rheumatologist, has worked at the Memorial Hospital Pain Management Unit since 1981 and has been its Medical Director since 1983. He saw the plaintiff on 15 April 1999 and made two reports dated 19 April 1999 and 7 Oct 1999 (Exhibit D7).
Upon examination Mr Awerbuch noted “an apparent global restriction of active cervical spine movements to no more than a third of the normal range.” (D4, p.6) He stated that in his opinion there was no physical basis for this presentation, and disagreed with Mr Hoare’s view that scar tissue could cause chronic pain. He said there was no physiological reason why she could not work as a geriatric physiotherapist in April 1999. Radiographically, the plaintiff’s neck at the time of the accident was very good for a person of her age.
Mr Awerbuch said that a delayed onset of pain for 24 hours or longer was typical of musculo-ligamentous injuries of the kind suffered by the plaintiff. Acute pain lasted up to three or four days, with gradual resolution over time, taking about six weeks before recovery was complete. It was his opinion that all cases where there was delayed onset of pain—necessarily implying a mild injury—recovered in six to eight weeks. He cited the plaintiff’s pain-free recovery from the 1970 injury as an example.
Mr Awerbuch said that more severe musculo-ligamentous injuries, where discs or facet joints have suffered damage, can take longer. Chronic pain can be related to these injuries, but there was no evidence that chronic pain could arise from the milder injury. He acknowledged that this was the subject of ongoing medical debate.
Mr Awerbuch could find no evidence of unresolved prior injury and could offer no physical explanation for the reported “frozen neck” in March 1996. He said it was highly unlikely that the plaintiff’s behaviour was masking some hidden disorder. He stated he had not come to his conclusion on the basis of the medical history and the absence of radiological findings alone, but also on “discordant and inappropriate findings on clinical examination.” (xxn 262.18-.19)

Discussion and conclusions

There is dispute that the plaintiff sustained a flexion-extension injury in the accident on 23 February 1996, but in the alternative it is pleaded that this injury, if it occurred, was not serious enough to involve damage to the cervical discs or facet joints. All the medical witnesses agree that results of radiological diagnostic tests at the time do not reveal any abnormalities arising out of the accident. Dr Petchell’s and Mr Awerbuch’s evidence was consistent in that the milder type of “whiplash” injury often results in a delayed onset of pain, followed by acute pain for a number of days, and usually resolves in a period of about six weeks. The plaintiff’s delayed onset of pain initially followed this pattern. Mr Hoare stated that in patients he sees the period of recovery is much longer, being between 12 and 24 months. There is divergence of opinion about the capacity of this kind of injury to cause chronic effects.
All three doctors gave evidence that the plaintiff’s reported “frozen neck” fell outside a normal expected reaction to the accident and none purported to offer a thorough medical explanation. Dr Petchell referred to the plaintiff’s pain and fearfulness. Mr Hoare referred to pain coupled with “functional overlay”. Nevertheless, both these doctors accepted that the plaintiff’s neck stiffness was caused by the accident. In cross-examination, Mr Hoare said that the physical damage caused by the accident would not account for the extent of the stiffness. Mr Awerbuch said that there was no physical explanation for the plaintiff’s “frozen neck”.
The most serious point of divergence relates to the existence of an ongoing physical injury. There the opinions of the two specialists are squarely at odds. Mr Hoare held the view that residual scar tissue from the injury, along with other non-organic factors, accounts for the plaintiff’s chronic pain and restriction of movement. Mr Awerbuch disagreed with this analysis. He held the view that her complaints of chronic pain and restricted movement could not be connected to the original injury, which would have resolved completely in a maximum of eight weeks.
My task is not to assume some kind of medical competence, but to decide the facts in the plaintiff’s case on the balance of probabilities. Where the opinions of two highly reputable medical specialists differ so widely on such an important issue as the persistence of the physical injury, that is not easy. On the balance of probabilities I come to the conclusion that the plaintiff did suffer a neck injury, but that it was a minor one.
The crucial factor in my assessment of damages is the unreliability of the plaintiff herself. My assessment is that she is a poor historian and has taken a biased view of events in order to boost her case. I am not convinced that her symptoms are as severe as she has represented them to be. In the witness box, she appeared to have a range of neck movement which belied her presentation to Mr Hoare and Mr Awerbuch in 1999 but was consistent with Dr Petchell’s evidence that her neck movement at that time was not very restricted. At one point in Mr Hoare’s evidence-in-chief, there was a suggestion that the plaintiff might not have been co-operating in examination (xn 133.32-134.8). Mr Hoare was not asked to give his opinion about her co-operation. There is a suggestion also on page 2 of Mr Oatey’s report (D8) of inconsistency between the plaintiff’s reported range of neck movement and Mr Oatey’s clinical observations. The plaintiff denied turning her neck in the manner described and Mr Oatey did not give evidence. While these suggestions of exaggerated and inconsistent presentation carry little weight in themselves, they nevertheless accord with my own assessment of the plaintiff.
A difficulty I have with the evidence of Mr Hoare is that he has relied to a large extent on the history given by the plaintiff. One aspect of this is his view of the severity of the impact. He formed his view of a quite severe impact on the basis of the chassis damage and his knowledge of the sturdiness of the Peugeot vehicle. In the light of my findings on this issue, it appears to me that Mr Hoare has over-estimated the force of the impact. In fairness to him, he also gave evidence that low speed impacts can lead to quite serious injury (xn 128.5-.14). On the other hand, Mr Awerbuch gave evidence that the delayed-onset reaction is indicative of minor injury.
In view of Mr Hoare’s reliance on the plaintiff’s account of her history, I prefer the view of Mr Awerbuch.
I find on the balance of probabilities that the plaintiff sustained a minor flexion-extension injury to her neck in the accident on 23 February 1996 and this injury had fully resolved in a matter of a few months at most. The plaintiff has not made any claim in respect of psychological sequelae, so that is not in issue. I arrive at this conclusion conscious that the plaintiff has suffered three “whiplash” type injuries in the course of her life. She has alleged that her injuries of a similar kind in 1970 and 1998 have completely resolved and that the 1996 injury was a fresh injury which has caused her extensive and continuing loss. The onus is on the plaintiff to prove this on the balance of probabilities. She has not done this to my satisfaction.
By what date had the 1996 injury resolved? Taking a strict view on Mr Awerbuch’s evidence, this would have been no later than eight weeks after the accident. However, I am prepared to take a more generous view and allow the plaintiff to claim all her losses up to the time her rehabilitation program with the Musculo Development and Fitness Unit ceased. On the evidence of Dr Petchell this was two weeks prior to 26 July 1996.
I determine therefore that the defendant is liable to compensate for the plaintiff’s loss in each relevant aspect of her claim up to and including Friday 12 July 1996.
Doing the best I can to place the plaintiff’s injuries on the scale provided by s.35a of the Wrongs Act, I ascribe the number 6. The multiplier is $1,520, and the award for non-economic losses is therefore $9,120.
In accordance with my findings, I cannot conclude that the plaintiff has any economic loss after 12 July l996. I find that the loss of her two part-time jobs in physiotherapy for aged people was not causally related to the accident. I assess this aspect accordingly. Nor is it demonstrated to my satisfaction that the medical expenses listed in Exhibit P6 can be contributed to the subject accident.
The plaintiff contends that there should be an allowance for ongoing medical expenses, and the like. I do not accept that submission.
As far as special damages are concerned, I simply draw a conclusion at 12 July 1996. Exhibit P6, reveals nothing before that date, and I am told that medical expenses prior to that date have been met by the defendant’s insurer. They should be considered as part of her damages for the purposes of this judgment, and credit allowed.
With respect to economic losses to 12 July 1996, I can only draw a broad approach. It appears from Exhibit P6 that the plaintiff was earning at the rate of approximately $18,000 per annum after taxation from her physiotherapy work. It is not clear what the impact of her losses from her art work had as far as taxation is concerned. Drawing a very rough estimate of five months incapacity, I award $7,500 for past loss of earnings. There is no award for the future.
In summary, therefore, I award as follows:-
Non economic loss  $9,120
Past economic loss     7,500
$16,620
  _______
There will be judgment accordingly.
I will hear the parties as to costs.

[2000] SADC 74

29 June 2000