Newport v Kelly

IN THE SUPREME COURT
OF QUEENSLAND Writ No. 43 of 1997
CAIRNS

[Newport v Kelly & Anor]

BETWEEN:                CAROLYNN NEWPORT
  Plaintiff
AND:  MATTHEW KELLY
  First Defendant
AND:  V.A.C.C. INSURANCE CO.LTD.
  Second Defendant
  REASONS FOR JUDGMENT
  BEFORE THE HONOURABLE JUSTICE JONES
  DELIVERED THE 15^th DAY OF April 1999

The plaintiff was injured in a motor vehicle incident on 10 May 1995 at the intersection of McCombe Street and Mulgrave Road, Cairns.
She was then 36 years of age, having been born on 8 May 1959.
The plaintiff was driving her vehicle - a Mazda 323 - along McCombe Street in a left turn lane which merges with Mulgrave Road. The first defendant was driving a Leyland Moke immediately behind her, though some distance away. At the intersection, the line of cars in the lane came to a halt. When the traffic flow in Mulgrave Road permitted the vehicles in the left turning lane to do so, they moved off. The first defendant, himself checking the traffic movements in Mulgrave Road, failed to observe that the plaintiff's vehicle had stopped in front of him. His vehicle struck the nearside rear of the plaintiff's vehicle propelling it forward about half way into the nearest traffic lane of Mulgrave Road. That distance, I estimate, would be less than 5 metres.
The first defendant stated in evidence that his vehicle was in first gear and had moved only 10 metres prior to the impact. The resultant damage to the vehicles was slight. That fact and the distance of post impact travel by the plaintiff's vehicle, leads me to conclude that the force generated by the impact was quite minor.
After impact, both drivers alighted from their respective vehicles and exchanged particulars. The police were not notified because, in the assessment of the parties, the damage to the vehicles was too slight. Nonetheless, police officers did in fact attend at the location. Both vehicles were driven away from the scene.
The defendants have admitted liability for the incident and I am asked simply to assess the plaintiff’s damages.
The force of the collision is a relevant, but not the only, factor in the task of determining the level of physical injury sustained by the plaintiff. The plaintiff was restrained by a seat belt and states that she "was thrown forward and back in the seat belt" (T8/45). Her head did not come into contact with the steering wheel or anything else. She did not lose consciousness but described herself as being "disoriented, confused and unable to walk".
The plaintiff claims that as a result of this collision she sustained a whiplash injury which resulted in -
(i)Permanent damage to the physical structures of her neck and cervical spine
(ii)Brain damage characterised by reduced cognitive skills and impaired memory
(iii)Post concussional syndrome and/or post traumatic stress disorder.
The defendants contend that her injury is limited to muscular strain in her neck which cleared up within a short period of time. Further, they contend that if the motor vehicle produced any adverse psychological reaction this was minor compared with the other significant stressors in the plaintiff’s life.
The assessment of the immediate effects of the plaintiff’s injury is made difficult by the fact that the plaintiff was, at the time, suffering from Ross River fever which had been diagnosed some two months prior to the incident. This condition gave rise to symptoms of joint pain, nausea and tiredness.
In an endeavour to support a claim of memory disturbance, evidence was led from the plaintiff that she was unable to recall the presence of a tow truck at the scene of the accident. But there was no admissible evidence that a tow truck was in fact present nor does the lack of recall of this kind contribute in any worthwhile way to an assessment of memory deficit.
The plaintiff consulted a doctor on the day following the accident at the Cairns Medical Centre, a 24 hour clinic. Her main complaint at this time was pain in her neck and shoulders and severe headache. She described her symptoms as - "felt like my head was going to explode" (T11/45). The pain extended down her back to an area between her shoulder blades (T42/32). On that day she also sought legal advice and arranged for repair quotes to her vehicle to be prepared.
At her first visit to the clinic, the plaintiff was advised to rest and to wear a soft cervical collar. She continued to attend the Cairns Medical Centre where she saw different doctors about her symptoms. She consulted Dr. Chilcott on 14 May 1995 and 29 June 1995, Dr. O'Leary on 24 June 1995 and Dr. Reed on 11 July 1995. Dr. Chilcott arranged for X-rays to be taken of her neck, the report on which recorded a normal result.
On 16 August, 1995 she consulted Dr. Hartrick, formerly of the Cairns Medical Centre, who had recently commenced private practice on his own account. Dr. Hartrick, in a long consultation, took a detailed medical history from the plaintiff and arranged for a battery of diagnostic tests to be undertaken. The request for these tests was prompted by the variety of the plaintiff's presenting symptoms and the potential causes which were not properly understood in the plaintiff's own mind. This was mainly because of the Ross River fever and some emotional problems. But the plaintiff also gave evidence, which I accept, that she had not suffered headaches of this kind prior to this collision.
The plaintiff, prior to this incident, had been experiencing some relationship problems with her then partner and this impacted on her emotional state. Part of the diagnostic testing was directed to her hormonal balance and her capacity to fall pregnant.
This initial interview with Dr. Hartrick was for the purpose of obtaining a complete patient profile. Many issues were canvassed. The plaintiff was concerned for her wellbeing and was not consulting the doctor simply to define the extent of disability arising from this particular incident.
I find that she was not necessarily clear in her own mind as to what symptoms might be referable to such matters as Ross River fever, the effects of the incident and the emotional stress which she was subject to in respect of her relationship issues. Consequently the plaintiff's statement at that interview that she had "slight stress arising from the accident" and at a later consultation that she had "slight pain in her neck and headaches" must be assessed in the broader context of the purpose for the medical examination.
The task of determining the causal connection between her symptomatology and the motor vehicle incident is not an easy one. In cross examination, reference is made to the fact that the plaintiff had subjected herself to substance abuse in her teenage years, that she was a marijuana smoker until a short time before the accident and a member of Alcoholics Anonymous. Reference is also made to the fact that on 4 May, 1993 she had been a passenger in a motor vehicle involved in a head-on collision and that thereafter she had made complaints of headaches. On 17 June, 1994 she fell from her pushbike which resulted in her being taken to the Cairns Base Hospital for treatment. The plaintiff also volunteered that in July 1994 she bumped her head against a paper cutting guillotine.
In my view, in respect of any of these prior incidents it has not been demonstrated that there were any continuing problems. The plaintiff was able to continue with the care of her four children and to undertake a fulltime course at the TAFE College during 1994, as well as engaging in part-time casual work. At various times during 1994 the plaintiff consulted medical practitioners complaining of emotional stress which seems to me to be more related to her domestic situation than any physical incapacity.
On both 1 November, 1995 and on 14 November, 1995 the plaintiff again consulted Dr. Hartrick complaining of symptoms - "slight pain in the neck and headaches" - which are clearly referable to this incident. The plaintiff had at about this time been referred to Miss Sharon Daniels, clinical psychologist, by the Commonwealth Rehabilitation Service, in particular by Mrs. Barton, physiotherapist. Again she presented with a variety of symptoms both physical and emotional. Prominent on the list of complaints were references to “forgetfulness”, “losing train of thought” and an “inability to find the right word”. Ms. Daniels carried out standard psychometric testing in December 1995 and again in February 1997.
The plaintiff continued to consult with Drs. Hartrick and Boyce throughout 1996. An MRI scan undertaken on 21 May, 1996 at the request of Dr. Boyce showed degenerative changes at C5-6 and C6-7 with a small midline disc protrusion at C6-7. Dr. Cameron, neurologist, who examined the plaintiff on 6 September, 1996 attributed these findings to a normal aging process in the lower cervical discs and did not relate them to the consequences of the incident. By contrast Dr. Boyce took the view that "in the absence of other trauma and in a woman of this age this is highly likely to be due to the motor vehicle accident". When cross examined about this conclusion, Dr. Boyce disagreed that these radiological signs were the result of normal degeneration. The fact that a year had elapsed between the accident and the MRI investigation allowed sufficient time for the effects of the trauma to show radiologically.
Dr. Boyce was also cross examined as to whether these radiological changes, if caused by trauma, could have been caused by traumatic events other than the motor vehicle incident. One example put to him was the fact that the plaintiff struck her head against the paper cutting guillotine referred to above. Whilst the doctor expressed a preference for the likelihood of trauma resulting from the respective incidents, the basis upon which they were described to him did not fully set out the full range of symptoms of which the plaintiff complained after the respective incidents. The plaintiff's complaints of pain in her neck, headaches, dizzy spells, memory problems which dated from the motor vehicle accident were not matched by equivalent continuing symptoms after the guillotine incident.
Dr. Cameron came to the view that the plaintiff suffered mild muscular strain to her cervical spine in the motor vehicle and that her symptoms had settled some six months following the event. This conclusion appears to be based on his finding, on physical examination in September 1996, normal movement of neck, absence of spasm and sensory disturbance and on his interpretation of the MRI study.
Dr. Boyce examined the plaintiff on 13 occasions in 1996 and performed a variety of electrical studies and other tests. He had the advantage of seeing the progress of her symptoms particularly of tenderness and reduced sensation. The fact of the normal plain X-ray taken in 1995 and the abnormal MRI study in 1996 support Dr. Boyce’s assessment of the connection between the plaintiff’s ongoing physical symptoms and the vehicle accident. I accept Dr. Boyce’s opinion in this regard.
It is well understood that whiplash injury is caused by a flexion and extension movement in the neck. There is not necessarily a direct relationship between this movement and the movement of the vehicle or the force of impact. Other factors such as neck rotation can make cervical structures more susceptible to injury. Accordingly, although I accept that the force of the impact between the vehicles and the amount of damage caused to the vehicles can properly be described as minor, nonetheless I am satisfied that the impact was sufficient to cause the whiplash injury diagnosed by Dr. Boyce and to give rise to the symptoms of headaches, neck pain, occasional dizziness and occasional altered sensation in her hands, which in varying degrees continue to the present time.
The plaintiff’s claim that she suffered brain damage is primarily based on the opinion of Dr. Boyce in his report of 3 July, 1996 and the opinion of Ms. Daniels, clinical psychologist. The possibility of brain damage was raised by the plaintiff’s complaint of poor intellectual functioning and impaired memory. There is no evidence of frank brain damage. Consequently, the focus falls on the conclusions which can be drawn from psychometric testing undertaken by Ms. Daniels.
After her first set of tests Ms. Daniels observed -
“Although her Verbal and Performance IQ scores are not significantly different, the variation between her worst and best subtests scores were, and are indicative of some comparative deficits.

Her worst subtest result indicated that she had below average ability to comprehend and size up a situation.

A pattern analysis of subtest results was not inconsistent with dysfunction in the left frontal and parietal lobes; and the right frontal/temporal lobes and would be of interest to a neurologist.” (Ex.4 at p.4)

She suggested that the plaintiff be re-tested 2 years after that. The testing was subsequently done in accordance with this suggestion and did not disclose any significant changes.

The testing data from these two occasions has been examined and evaluated by Dr. Lucille Douglas. Apart from some minor alteration in the calculation process which Ms. Daniels concedes ought to have been made, the values arrived at for the various intellectual and memory capacities remain basically the same. The two psychologists however differ somewhat in the conclusions to be drawn from that data. It is not necessary to state the technical process by which Dr. Douglas arrived at her different conclusions. Ms. Daniels makes the point that a recorded comparative deficit in attention/concentration was specific to the plaintiff rather than a comparison to the population at large which apparently highlighted Dr. Douglas’ conclusion. Also there was a difference of opinion between the psychologists about the part played by motivation at the time of her testing and about the allowance for the plaintiff’s visual memory being somewhat more highly developed than her verbal memory skills.
Ultimately, these differences have to be weighed against the other evidence of the plaintiff’s pre-accident and post-accident capacities, the medical opinions and of course my assessment of the plaintiff.
The plaintiff’s claim of impaired memory is not, in my view, supported by the evidence generally and nor by the psychometric testing in particular. There is no independent evidence such as observation by family members or friends of any difference between the pre-accident and post-accident situation. I conclude that the true situation is that the plaintiff’s intellectual function and memory as first tested, approximately 6 months after the incident, is such that her capacities fall within the high average to average range. Any perceived loss of intellectual or memory function is explicable by the increased stress that the action brought to her life already marked by significant psycho-social stress rather than by any actual brain damage.
After a consideration of all the evidence I am not satisfied that the plaintiff has shown that she has suffered any brain damage whatsoever. I note that in the circumstances of this particular collision, where the plaintiff’s head was not struck, that Dr. Boyce in cross examination agreed with the suggestion that the impact was unlikely to be “productive of any significant head injury” (T136/28).
I accept the plaintiff’s evidence that in addition to the physical symptoms attributable to her neck injury she did experience increased emotional upset. This manifested itself in memory problems, increased difficulty in decision making, inability to concentrate and disturbed and broken sleep. These problems were supported and extended by the physical pain and limitations associated with her neck injury. Dr. Redden commented in her report that it was “likely that the whiplash injury heightened Ms. Newport’s stress levels and caused her anxiety” (ex.11 at p.14). Anxiety in its turn also impacts on memory and ability to concentrate.
Significantly the plaintiff was unable to continue her visual arts course at the TAFE college, notwithstanding the fact that she enjoyed the course and had previously done well there.
Some debate occurred as to whether the symptoms would allow a diagnoses of post-concussional syndrome or whether they are more correctly described as a post-traumatic stress disorder. Little turns on this debate for the purpose of assessment of damages. The plaintiff did not, as a result of this collision, suffer concussion as that term is ordinarily understood. On cross examination Dr. Boyce conceded that one of the conditions which is mandatory for the diagnosis of a post-concussional disorder is some interruption to cerebral function, loss of consciousness, amnesia or something similar. In my view, the symptoms of which the plaintiff complained do fit within the ambit of post-traumatic stress, the effects of which fall to be assessed against the general background of her personal situation at that time.
Some of the symptoms of which the plaintiff complains that are referrable to the motor vehicle accident are still present and are likely to continue until appropriate counselling is undertaken. No doubt the conclusion of litigation will also be beneficial. But there remains the fact that the plaintiff’s neck will continue to produce symptoms of headache, pain and limitation of movement and these will continue to impact on the plaintiff’s emotional vulnerability.
The plaintiff is now 40 years of age and has a life expectancy in accordance with the standard tables in excess of 40 years. I assess her general damages at $30,000 of which $15,000 should be attributed to the pre-trial period. Interest on that latter amount is allowed at 2 per cent for 4 years and this yields a further component of $1,200.

Economic Loss

The plaintiff left school in her mid teens having completed form 4 in the Victorian High School system. Thereafter she completed an apprenticeship in jewellery making and followed that calling until she married at aged 22 years. She went with her husband to Japan for 2 years and after a break of a further 2 years returned to Japan for 4½ years.
Whilst in Japan she was involved in jewellery manufacture as well as teaching English to Japanese students. On her return to Australia the plaintiff and her husband settled in Cairns but soon after they separated.
The plaintiff has a capacity to engage in the work of jewellery manufacture and has experience in retail sales in three different jewellery stores in Cairns. Between early 1993 and mid 1993, she worked for Graham Chibnall, a Cairns jeweller, where she was engaged in both manufacture and sales work. Between 20 December 1993 and February 1994 she worked in retail sales for Opal Strike jewellers in Cairns. She was regarded by both employers to be competent in those roles. During 1994 she completed the first year of a two year fulltime visual arts course at the TAFE college in Cairns. She also undertook training on the SEVS/NEIS bookkeeping course. She intended to complete the visual arts course in 1995 but was unable to do so because of the effects of this incident. The plaintiff’s plan for the future after completing the course appears to have been somewhat unformed. She had ambition to engage in painting but no evidence was lead as to whether this aim extended beyond hobby level nor as to the impact the injuries had on her capacity.
The plaintiff’s first work following the accident was for the period 11-29 December, 1995 when she worked for Crofton Clausen & Co. Jewellers and earned approximately $1,000 (ex.14). Her next income earning activity was in August, 1996 when she was engaged by the Australian Institute of International Understanding to provide courses and arrange home-stay for visiting Japanese students. She earned in this activity $2,200. In 1997 she was engaged on a voluntary basis setting up administrative systems for the kick Arts Group at Cairns. In August, 1998 undertook work as a day carer for children for which she earned between $500-$700 per month. Also during 1998 the plaintiff assisted her then partner, Mr. Nick Groche, in bookkeeping tasks for his business as a computer software supplier. This business trades under the name of Axial Studios.

It is seen from this brief overview of the plaintiff’s pre-accident and work history that she does have training and skills which would allow her to be gainfully employed. This would be in the areas of jewellery manufacture, retail sales, clerical work and informal language instruction or liaison with visiting Japanese students.
The plaintiff asserts that her capacity to carry out work in these areas has been significantly reduced by her impaired memory and some of the physical limitations caused by her injury. The difficulty that she has in making out that assertion, is that since the accident, there has been no long-term consistent employment which demonstrates its accuracy. However, her first employment after the accident with Crofton Clausen & Co. demonstrated that she was able to carry out the work to the complete satisfaction of her employers for that 2 to 3 week period. There was nothing in the way in which she attended to her duties which indicated to her employers that she had any difficulty in carrying out the tasks. Similarly, in respect of her role as a day carer for children, there was no complaint in her evidence that she had difficulty in performing the duties associated with that calling.
The plaintiff presently cares for 5 children of her own whose ages are 16 years, 14 years, 12 years , 6 years and 20 months. Given the demands as a sole parent caring for such a family it is quite understandable that the plaintiff has not had the opportunity to submit herself to fulltime continuous work of the kind appropriate to her training.
In these circumstances it is not possible to assess the plaintiff’s loss of earning capacity by reference to a specific diminution of earnings and then to make some calculation based on that assessment. Rather, it seems to me, there is no alternative to the making of a global allowance. In so doing I have regard to the fact that the plaintiff, prior to the accident, was engaged in irregular and casual employment; that she would not be available for employment until the end of 1995 on the completion of her TAFE course; and that thereafter the demands of her family and her desire to have further children would prevent her from offering herself for fulltime employment.
I do accept that the physical symptoms caused by this incident and the additional impact those symptoms have had on her psychological wellbeing have diminished her capacity to seek out work and to be competitive in the labour market. This loss of competitiveness will become more pronounced as she gets older unless she is in a position to use and to develop her existing skills in the near future.
The only earning rate which I can use as a guide on the evidence before me is the rate for a shop assistant on which her earnings in her last regular employment was based. This sum is $12 per hour. The plaintiff’s present earnings - $500-$700 per month i.e. $7,500 per annum - is somewhat less than the plaintiff might have earned in part-time casual employment in the jewellery trade, but no doubt this to some extent reflects personal choice. However, I have to be concerned that when the demands of raising a family are reduced in a few years’ time the plaintiff might be restricted by reason of her injuries to part-time work rather than fulltime work. I do not propose to make any distinction between past and future periods in relation to this assessment but rather I have taken the view that an allowance of $20,000 is appropriate to cover all aspects of her economic loss because of these injuries.
The other item of claim - special damages - has been agreed between the parties in the sum of $5,932.30. The compilation of the plaintiff’s damages will then take the following form:-
Pain, suffering and loss of amenities  $30,000.00
Interest on past general damages  $ 1,200.00
Economic loss - past and future  $20,000.00
Special damages  $ 5,932.30
$57,132.30
I give judgment for the plaintiff against the defendants in the sum of $57,132.30.

[1999] QSC 79

15 April 1999