Nundle v Hayes
[2001] WADC 104
•11 MAY 2001
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: NUNDLE -v- HAYES [2001] WADC 104
CORAM: LA JACKSON DCJ
HEARD: 25-26 APRIL 2001
DELIVERED : 11 MAY 2001
FILE NO/S: CIV 1565 of 1999
BETWEEN: ASTRID ELAINE NUNDLE
Plaintiff
AND
JOHN WILLIAM HAYES
Defendant
Catchwords:
Assessment of damages for personal injuries arising out of a motor vehicle accident - Turns on own facts.
Practice and procedure - Whether a determination of a Medical Assessment Panel pursuant to s 145E of the Workers' Compensation and Rehabilitation Act 1981 is limiting on the District Court
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943, s 3A, s 3B, s 3C and s 3D
Workers' Compensation and Rehabilitation Act 1981, s 145E
Result:
Damages assessed at $37,509.04
Representation:
Counsel:
Plaintiff: Mr K J Bradford
Defendant: Mr D J Matthews
Solicitors:
Plaintiff: Bradford & Co
Defendant: State Crown Solicitor
Case(s) referred to in judgment(s):
Fox v Wood (1981) 148 CLR 438
Maketic v Osmanbasic & Anor [2001] WADC 70
Case(s) also cited:
Nil
LA JACKSON DCJ: The plaintiff's claim is for damages for personal injuries arising out of a motor vehicle accident on 20 March 1998. Liability is not in issue and this is therefore an assessment of damages only.
The plaintiff
The plaintiff was born on 24 April 1967. She was therefore age 31 on the day of the accident and 34 at trial. She was employed as an aboriginal health care worker by the Perth Aboriginal Medical Service. At the time of the accident she was, in the course of her employment, driving a patient from a medical appointment to his home.
The accident
The plaintiff was the driver of a Deawoo Sedan being driven along Lord Street in Bassendean which had become stationary behind a number of other vehicles at the traffic lights at Guildford Road. The defendant was the driver of a bus which had stopped behind her. The defendant said, and I accept, that he was returning empty to a depot. When he stopped at the lights he applied the foot brake but not the hand brake. He then stood up in order to change the numbers on the bus and in doing so says he must have released some of the pressure on the foot brake allowing the bus to move forward and run into the back of the car driven by the plaintiff. There was minor damage to the Deawoo and none to the bus. The plaintiff said the bus lurched forward and struck her car twice. The bus driver denies this. Nothing really turns on the resolution of that difference. It may well be that the bus collided with the car and pushed it forward a short distance and then collided with it again. The bus is of course substantially larger and heavier than the car and it may well be that a bus driver would be less aware of a minor collision than would be the driver of a small car. The bus driver said he observed the damage to the car from which I conclude that there must have been some space between the car and the bus after the collision. Certainly the collision was not significant but, in my view, sufficient to cause injury to the plaintiff. The medical evidence before me was that a whiplash spinal injury can be caused at relatively low speeds. The force of the impact is, however, probably more related to the difference in relative masses of the two vehicles so that a relatively minor collision from the bus' point of view would be relatively significant to the car.
The plaintiff had a passenger in her car. He was a sick frail man and although there was speculation about the likelihood of a frail person being injured in an accident it is really all fairly speculative and again nothing turns on it.
The plaintiff said the collision was sufficient to cause her injuries to her spine and back and I accept it did.
The injuries
The plaintiff said she suffered injuries to her neck, to her back in the region of her left scapular, to her lumbar spine and to her right knee. She said she felt a tingling sensation. She did not complain to the defendant at the scene but that, I think, is of no significance. In his evidence the defendant was asked whether there was any complaint or recriminations by the plaintiff but said there were none. That is not entirely surprising in view of the character of the plaintiff as I assess her. She is an aboriginal woman who seemed to me to be very quiet and somewhat reticent in being forthcoming in her evidence. Indeed such a character was commented on by doctors to whom she was referred in a critical manner. I think such criticism is unfair to the plaintiff and fails to take into account her nature. To describe her as a poor historian or as someone who did not answer direct questions fully is to fail to understand that by her nature limited responses are perhaps to be expected.
The plaintiff did not get out of her car at the scene but after exchanging details for the defendant drove her passenger to his place of residence some 40‑45 minutes drive away. It was suggested that by her failure to inspect the rear of her vehicle she was aware that the collision between the bus and her vehicle was trivial. I do not accept that to be a conclusion which should necessarily be drawn.
Later that afternoon the plaintiff went to see her GP Roger Nicholl. She complained of injuries to her neck and back and headaches. She also complained of an injury to the right knee. The plaintiff was referred for physiotherapy and anti‑inflammatory medication. This treatment regime continued until the end of April. The plaintiff was not again seen until August. The reason for this was that she had returned to her home town of Quairading with her de facto husband and children. Whilst in Quairading it seems she did not seek medical advice or treatment but relied upon traditional aboriginal remedies of goanna oil and emu oil rubbed in by her mother.
She was next seen by Dr Nicholl on 26 August 1998 when she reported that her back had been ok but had not settled completely and that her neck had never really settled either. It seems to me that her complaints expressed in that way indicate a very minor level of disability at that time. Dr Nicholl issued a number of workers' compensation certificates but I note there was none issued in August 1998.
On 8 November 1998 the plaintiff saw Dr Nicholl reporting that whilst washing dishes she had turned to her right and experienced a severe pain in the left side of her upper back. There was quite a lot of evidence in relation to exactly what it was the plaintiff was complaining of but I consider any uncertainty or inaccuracies to be a reflection of her nature rather than to indicate any lack of honesty on her part. I find the plaintiff was suffering a soft tissue injury being a musculo ligamentous strain to the left thoracic spine.
The defendant strenuously opposes a finding that this pain was due to the accident. Doctors called by the defendant generally did not accept the genuineness of the plaintiff's complaints. The diagnosis of soft tissue injury is generally subject to acceptance or rejection of complaints made by the patient. Doctors called by the defendant generally did not accept the plaintiff as being genuine. At trial it is the opinion of the judge as to the credibility of the witnesses that counts and in this case, for the reasons I have mentioned, I consider the plaintiff to be a credible witness. Any weaknesses in her presentation are, I think, due to factors personal to her. Of doctors called by the defendant Mr Stewart Brash was particularly critical of the plaintiff. He considered that the plaintiff was exaggerating and did not accept the injuries as she described them. In the first page of his report of 13 July 1999 Mr Brash having recited the background commented:
"The most striking feature of this history is that the plaintiff has been OFF WORK EVER SINCE."
The emphasis given by Mr Brash in this way is not a usual feature to be found in opinions of independent medical practitioners. In the same report on p 3 Mr Brash said:
"I certainly obtained the impression, and I stress that this is only an impression, that this lady had probably been coached in her symptoms and that there was some degree of exaggeration."
When taxed by counsel for the plaintiff that this comment was an imputation upon the plaintiff's solicitors Mr Brash quickly resiled from that suggestion.
The way in which Mr Brash has dealt with this case causes me to doubt his objectivity and impacts upon the weight I give to his opinion.
Although there is a lack of precision in the evidence on behalf of the plaintiff I am satisfied on the balance of probabilities that the musculo ligamentous strain to the left thoracic spine is related to the motor vehicle accident the subject of this action. I accept there is no evidence of regular complaint of pain in the mid back. I think that is really caused firstly by a greater concern as to neck pain at the early stage and then due to the plaintiff's absence and lack of medical consultation for a considerable period. Dr Nicholl noted that in August the plaintiff's back had never really settled. Various doctors have described the incident in November as an exacerbation of the plaintiff's symptoms. Although one was able to recall precisely what the plaintiff said as to the history of pain or disability in the mid back area, the use of the expression "exacerbation" can only mean a conclusion that the effects of the motor vehicle accident had not gone away. Although it is possible that a twisting motion could have caused the injury in the absence of the motor vehicle accident I am satisfied on the balance of probabilities that that was not the case. It is more likely that the mid back area had not completely settled and that the simple motion of twisting whilst washing up had caused it to flare up again. In those circumstances I do not consider there to be any break in the chain between the motor vehicle accident and those symptoms.
It is clear that within a few weeks the injury to the knee had settled down. It is also clear that by the end of 1998 so had the cervical spine and lumbar spine problems. The date of substantial resolution of those problems is somewhat uncertain. In August it seems clear to me there was not much more than a niggling continuation of problems. The plaintiff said that the natural remedies administered improved her condition. The burden of proof is on the plaintiff to prove the extent of the injuries suffered by her as a result of the motor vehicle accident. The evidence does not satisfy me that the plaintiff suffered to any significant degree after a period of about three months from the date of the accident until the exacerbating event in November.
The future
Accepting as I do that the plaintiff up to the date of trial is suffering from a musculo ligamentous strain to the left thoracic spine, the next issue is the prospects in the future. The plaintiff's injury is a soft tissue injury. Opinions are divided as to how long such injuries are likely to last. There is considerable dispute about the nature of soft tissue injuries. At one extreme Dr Stewart Brash denies soft tissue injuries can continue more than six weeks. Perhaps a more general body of medical opinion considers that not to be the case. I think it fair to say such injuries are generally not permanent. It is, of course, for the plaintiff to prove the extent of her injuries. I am not satisfied on the evidence before me that her present condition is likely to be permanent, rather a gradual improvement would be to be expected. Even if it was permanent, the extent of the disability is, as I have said, minor.
The Medical Assessment Panel
The plaintiff was referred to a Medical Assessment Panel pursuant to s 145E of the Workers' Compensation and Rehabilitation Act 1981. The panel is empowered to make a determination as to the nature or extent of the disability. The plaintiff was so referred and the panel decided she was suffering from abnormal illness behaviour. Abnormal illness behaviour is not a determination as to the nature or extent of a disability but rather a finding that the plaintiff's physical manifestations are inconsistent with the objective findings. Whether such divergence is deliberate or unconscious was not a matter determined by the panel.
Section 145E(5) provides:
"Unless rescinded under section 145F, the determination, or if the determination is varied under that section the determination as varied, is final and binding on the worker and his employer and on any court or tribunal hearing the matter in which any such determination is relevant and the written determination given under sub‑section (3) is, in the balance of evidence that the determination was so rescinded or varied, conclusive evidence as to the matters determined."
A preliminary issue raised is whether or not the determination of the Panel is binding upon the District Court in this trial.
In my opinion it is not. The issue of whether a worker has suffered a disability is for a determination as to the payment of weekly payments of compensation by an employer. The issue in an action for damages for a tort committed by a person other than the employer and for whom the employer is not vicariously liable is a matter of the assessment of the appropriate damages including damages for loss of earning capacity. It may well be that in the calculation of the value of the loss of earning capacity regard will be had to the wages ordinarily earned by an employee which could be equated to weekly payments of compensation but it is not the same concept. My view on this matter is assisted by noting that matters referred to the panel when there is a dispute between a doctor to whom a worker is referred for treatment or advice and a doctor by whom the employer or employer's insurer refers the worker for assessment. It would be a remarkable result if a determination of such a dispute was to be binding upon a tortfeasor who was not part of that dispute and who had no input into the panel's consideration. I do not say that such a result would be impossible but it would be so manifestly unjust as to require the clearest possible terms before such a construction of the Act should be made. In my view the words are not so clear and accordingly no such interpretation should be made. My opinion is strengthened by reading the second reading speech when s 145E was added to the Workers' Compensation and Rehabilitation Act in 1993. I could find no suggestion that the changes were intended to have the radical effect of binding a tortfeasor who is not the employer in civil litigation. Charters DCJ in Maketic v Osmanbasic & Anor [2001] WADC 70 came to the same conclusion.
General damages
Sections 3A, 3B, 3C and 3D of the Motor Vehicle (Third Party Insurance) Act 1943 apply to this case. In substance a plaintiff is not entitled to recover damages for non‑pecuniary loss, being losses for which at common law a plaintiff would be entitled to general damages, unless the severity of the injury suffered is 5 per cent or more of the severity of injuries suffered in a most extreme case. A most extreme case is not defined by the Act but is a matter of assessment for the courts. Each case must be assessed on its own merits. In this case no significant injury occurred at all. Symptoms even remotely serious had resolved within three months. Long term problems are minor and should continue to improve. In my view on such an assessment the severity of the injuries suffered in this case is not 5 per cent or more of a most extreme case and accordingly no damages should be awarded for non‑pecuniary loss.
Loss of earning capacity
Claims for damages for loss of earning capacity are traditionally divided into two areas: firstly such losses up to trial; and secondly such losses after trial. I do not think this is a convenient way in which the subject should be dealt with in this case.
The descriptions of the plaintiff's work are somewhat less than precise. An aboriginal health care worker is employed to perform a number of tasks. She or he will visit a client at that person's place of residence for the purpose of doing basic medical tests such as blood pressure and blood sugar. He or she will take the client to medical and other similar appointments. There may be some assistance about the house which is given. Occasionally a health care worker might assist with showering although that appears to be the task of a less qualified worker known as a Health Aide.
The specific duty for which the plaintiff claims she is unfit for work is with respect to taking a client who is wheelchair bound to medical and other similar appointments. She says she is unable to lift such a person to the car and to place that person's wheelchair into the boot. The extent to which this type of work is a problem was not explored in any great detail. Mr Barry Slinger advised that many people who are confined to a wheelchair do not physically need to be lifted in and out of a motor car; the wheelchair being only necessary because the patient is unable to walk for any great distance. According to Ms Eileen Taylor, the manager of health of the Perth Aboriginal Medical Service there were between 120 and 160 clients of the department during the relevant period and it seems there were four or five carers for them. Only six to eight of that group used wheelchairs. On Mr Slinger's evidence only a proportion of those will be required to be lifted. It seems to me that to the extent that it is the lifting of the patients that is the crucial factor, that was work which could well have easily been avoided by a person in the plaintiff's position by some re‑scheduling of the client list. No attempt appears to have been made by the plaintiff or anyone on her behalf to achieve that very simple outcome. Without that heavy work there appears to be no reason why the plaintiff would not have been able after a period of three months or so as previously described to have carried out all of the duties of an aboriginal health care worker.
For reasons I have already discussed, it seems to me that at best for the plaintiff she was incapacitated for work due to the various injuries suffered for a period of three months. Her net earnings for that period of time are not disputed to be $530 per week. $530 for 13 weeks amounts to $6,890.
Since about the end of June the plaintiff has, in my view, been fit to perform the vast bulk of the work of an aboriginal health care worker. She is obliged to make reasonable endeavours to work and is not entitled to simply sit on her hands. There was some suggestion of a work trial and it appears from a list of expenses provided by her employer's workers' compensation insurers some money spent on rehabilitation but I have absolutely no information as to what was done and to the extent to which it was successful or unsuccessful.
Having said that, I do accept that the plaintiff since about June 1998 and into the future for some indefinite period has had and will have a weakness in the labour market for which compensation should be paid. The assessment of the value of such weakness must necessarily be almost entirely arbitrary because there is really no evidence to indicate its actual worth. The plaintiff's work history prior to the accident had been sporadic. She was not a permanent employee but acting simply as a relief. Tax returns evidence show a gross taxable income in 1996 of $4,127. No tax return for 1997 was filed. The 1998 tax return showed a gross taxable income of $15,728.
In my view a reasonable assessment of her loss of earning capacity since June 1998 would be the sum of $25,000.
I would therefore allow the plaintiff the sum of $31,890 for loss of earning capacity.
An employer's workers' compensation report showed a gross income of $685.68 per week. I presume the difference between this and the $530 per week is tax of $155.68. $155.68 for 13 weeks is $2,023.84 which should be allowed. (Fox v Wood (1981) 148 CLR 438).
Gratuitous services
The plaintiff claims that as a result of her injuries she is unable to do all of the required housework and her de facto husband and children assist her. Her do facto husband's evidence was that the family spends about two hours per day on household duties and that he and the children are required to do more to assist the plaintiff. It must, I think, be observed that in modern society the sharing of household duties is a common feature. The extent to which the plaintiff's injuries necessitate assistance seems, in this case, to be extremely limited. She says that heavy work such as mopping or carrying a clothes basket are the sorts of things she cannot do. No particulars of such work were given. As a matter of common knowledge such tasks are not necessarily daily tasks. A value of $12 per hour for such work was agreed.
Section 3D of the Motor Vehicle (Third Party Insurance) Act provides that no award for gratuitous services for home care is to be made unless the amount is calculated to be $5,000 or more. In the initial few weeks no doubt the plaintiff would have required a fair amount of assistance. However that amount of assistance would have reduced substantially fairly quickly and could not, in my view, be any more than an hour or so per week to do the particular type of work which she describes being unable to do. It would take some years to exceed $5,000. I consider no allowance should be made for gratuitous services.
The sum of $3,595.20 is revealed as having been paid for medical expenses by the workers' compensation insurer. That information was given to me without objection. No details have been given and no basis upon which its reasonableness as against the defendant have been explored. However in view of the apparent lack of issue on the subject I would allow that sum by way of past medical expenses.
The plaintiff appears to be receiving no medical treatment and I have no information as to any pharmaceuticals being taken by her or as to the value of them. She said she is continuing with the emu and goanna oils, but no cost was given. In the circumstances I am unable to make any award with respect to future medical and ancillary expenses and accordingly do not do so.
In the circumstances the plaintiff is entitled to an award of damages calculated on the following figures:
Loss of earning capacity $31,890.00
"Fox v Wood" allowance $2,023.84
Medical expenses $3,595.20
$37,509.04
0