Papp v Finley and Insurance Australia Limited
[2015] ACTSC 74
•23 April 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Papp v Finley & Insurance Australia Limited |
Citation: | [2015] ACTSC 74 |
Hearing Dates: | 8 – 10 December 2014, 17, 18 March 2015 |
DecisionDate: | 23 April 2015 |
Before: | Cowdroy AJ |
Decision: | Judgment be entered for the plaintiff against the defendants in the amount of$261,476.00; The defendants pay the plaintiff’s costs of the proceedings. |
Category: | Principal Judgment |
Catchwords: | TORTS – Negligence – motor vehicle accident – liability admitted. DAMAGES – Personal Injury – assessment of damages – issue of extent and duration of injuries – issue of whether other incidents contributed to ongoing injuries – issue of whether plaintiff is a credible witness. |
Legislation Cited: | Civil Law (Wrongs) Act2002 (ACT) |
Cases Cited: | Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 Geaghan v D’Aubert (2002) MVR 542 Griffiths v Kerkemeyer (1977) 139 CLR 161 Purkess v Crittenden (1965) 114 CLR 164 State of New South Wales v Burton [2006] NSWCA 12 Wormald v Caftor Pty Ltd t/as Moose Heads Bar and Cafe [2012] ACTSC 97 |
Parties: | Susanna Papp (Plaintiff) Danielle Finley (First Defendant) Insurance Australia Limited (Second Defendant) |
Representation: | Counsel Mr A Muller (Plaintiff) Mr P Ryan (Defendants) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) HWL Ebsworth Lawyers (Defendants) | |
File Number: | SC 269 of 2014 |
Cowdroy AJ:
The plaintiff claims damages pursuant to the Civil Law (Wrongs) Act2002 (ACT) for personal injuries sustained by her as a result of a motor vehicle accident which occurred on Friday 8 July 2011 at approximately 2.30 pm in the Gozzard Street underground car park at Gungahlin (‘the accident’). Liability of the defendants is admitted, and accordingly, the only issue for the Court to determine is the quantum of damages to which the plaintiff is entitled in respect of the injuries which she sustained in the accident.
Facts
The accident
The plaintiff was born on 23 October 1961, and is now 53 years of age. On the day of the accident, the plaintiff had finished her work as an employee of Woolworths, which had a branch above the car park in Gungahlin. The plaintiff’s vehicle, a Toyota Aurion registered YHH 32N was being driven slowly over speed bumps when, without warning, a Toyota Prado four-wheel-drive registered YHI 03Y collided with the driver’s side of the plaintiff’s vehicle. The impact was such that the passenger side of the first defendant’s vehicle mounted onto the mudguard of the plaintiff’s vehicle. Photographs tendered in evidence demonstrate that the impact caused substantial damage to the front mudguard and engine compartment of the plaintiff’s vehicle. The vehicle was subsequently repaired at a cost of $8,000.00.
The plaintiff stated that she closed her eyes at the time of the impact and, when she reopened them, was shocked to see the other vehicle on her car. She felt short of breath and became hysterical. However, the plaintiff did not believe at that time that she was injured.
The injuries
The plaintiff said she had experienced excruciating pain throughout the night in her right hand and left shoulder. On the following morning (the Saturday), the plaintiff found that she was shaking and that she had sustained bruising. Her hand was swollen and was described as “having turned purple”. Her husband took her to the Ginninderra Medical Centre for x-rays, and the plaintiff’s right hand was placed in a plaster cast. No fractures, however, were detected. The plaster slab was removed on 18 July 2011. In consequence of injuries suffered as result of the impact to her right hand and her left shoulder, she was off work for a period of eight weeks, during which time she received workers’ compensation payments from her employer.
The plaintiff sustained an injury to her right hand and wrist and to her left shoulder. She has consulted medical experts. With respect to the right wrist, it was established that the plaintiff suffered a tear of the lunotriquetral ligament, which runs across the dorsum of the hand. The prognosis for this injury varies. It is believed there may be some further improvement, but no active treatment has been prescribed for this injury.
As to the left shoulder, the plaintiff claims that she continues to have restriction of movement and continuing weakness in her left shoulder, and pain in the left arm above shoulder height.
The plaintiff claims to be regularly in pain in her right hand or her left shoulder. The plaintiff stated that she takes one Panadol in the morning, two Nurofen at the end of each day, and two Panadol when she goes to sleep. If she sleeps on her left shoulder, she notices severe pain, for which Panadol and Nurofen are now inadequate. She takes sleeping tablets and a Swiss vitamin tablet to assist her in sleeping. Prior to the accident she never took sleeping tablets.
The plaintiff’s medical evidence indicates that the prognosis for the shoulder injury is uncertain. The plaintiff has consulted an orthopaedic surgeon, Dr Sindy Vrancic, who suggested surgery because of a nerve impingement. The plaintiff, however, has elected not to proceed with surgery because two of her work colleagues underwent surgery of a similar kind which was unsuccessful, and caused one to be dismissed from her employment.
In addition, the plaintiff is suffering from a psychological effect of the impact. It takes the form of a severe anxiety response which is noticeable when she is a driver or passenger in a motor vehicle. Many months after her accident, she witnessed another accident, which caused her great distress and revived in her mind the shock of her own accident. The plaintiff states that she avoids driving where possible, an often requires her mother or a member of the family to accompany her to give her encouragement in driving. The plaintiff has undergone a behavioural therapy course to assist her with this disability.
In addition to the above injuries, the plaintiff claims to have suffered tinnitus in both ears, which causes her distress however, no submission is made that this condition is accident-related.
The plaintiff’s treatment for her injuries has been confined to physiotherapy. The plaintiff was unable to recall the dates on which she underwent physiotherapy. However, she stated that following her motor vehicle accident, she had some physiotherapy on approximately 11 occasions to her right hand and left shoulder.
Impact of Injuries on the Plaintiff’s Employment
The plaintiff was employed in Promotions and Cash Office of Woolworths. Her role required her to display promotions on various items throughout the store. She explained that such work involved folding a price tag and inserting a type of pin to indicate the sale price. The work required continual use of her wrists and hands. She would usually undertake this work for seven hours at a time. Sometimes the work commenced at 4.00 am.
The plaintiff was also required to change prices according to a computer print-out published daily to the Gungahlin office, which indicated those items which were to have their prices increased or decreased. Throughout the day, the plaintiff was required to change the prices of various articles which were located on 8 shelving levels throughout 17 aisles in the store.
The plaintiff stated that, upon her return to work as a systems operator, while she believed that she would be able to cope, she experienced pain in her right wrist and in her left shoulder and she noticed that she was slower at performing her duties.
As a result of the plaintiff’s departmental manager observing that the plaintiff was slower at performing her regular duties, the plaintiff was given different duties; namely, assisting Cash Office. Cash Office distributes bags of wrapped coins from the office to various cash registers throughout the store. The plaintiff is currently carrying out these duties. She experiences pain lifting the boxes from the safe which contains the coins and needs to lift with her right hand, which is supported by her left hand, to carry the boxes onto a counter. The plaintiff also said that she would move bags in the safe using her left foot in order to avoid using her left arm. Despite the fact that these duties were provided to her in order to assist the pain which she was receiving in her right wrist and left shoulder, the plaintiff continues to experience ongoing pain.
As to her future, the plaintiff claimed that she was hoping to obtain employment in a salaried position at Woolworths in view of her knowledge of the Cash Office and of the systems in place. However, in view of the fact that she cannot lift heavy items, she considers that her future hope of a salaried position is now remote. She has not contemplated retiring.
In addition to working at Woolworths, the plaintiff has maintained part time employment. The employer is a jeweller known as Zamels. She worked with Zamels as a sales assistant in 2003, but then stepped down to take a less demanding position in a clothing store in Manuka. However, an associated store of Zamels; namely, Mazzucchelli, later commenced business in Gungahlin and the plaintiff was invited to work part-time as a casual in that store. The plaintiff, prior to the accident, claimed to have worked as a casual in that jewellery store three times per week, on average. Following the accident, the plaintiff has only worked there once per fortnight because she has found that even working in the jewellery store has caused her difficulties. She was often required to reach across merchandise in the window of the store and do other tasks which caused her pain and discomfort. As a result, her employer has engaged more casual staff, thereby limiting the plaintiff’s hours of work, as the plaintiff was unable to perform more shifts.Prior to the accident, the plaintiff said that she was generally in excellent health. She had some chest pains in 2010 which, upon investigation, proved to be of no consequence. She took no time off from her work while she underwent various tests.
Also in 2010 the plaintiff sustained an injury at work to her left side and ribs when she was knocked to the ground by a moving pallet. Despite her injuries and invitation by her doctor that she should take time off, the plaintiff said that she attended her work every day, albeit for restricted hours.
In 2010 she broke a finger and sustained some back pain, but again took no time off from work. She was able to devote her time to doing jobs outside her usual duties, such as organising stock in the store.
I will elaborate on these other injuries later in these reasons.
Family Background
The family background of the plaintiff is unremarkable. Her primary education was in Australia, but in 1972 the plaintiff, her Italian mother, her Hungarian stepfather and her younger brother went to Italy, where they remained and lived until 2001. During this period the plaintiff attended high school in Italy and, upon leaving school, had a variety of occupations including that of a hairdresser and working as an assistant in a café or restaurant operated by her mother.
The plaintiff married on 16 July 1988. She has two children, namely a daughter born in 1990 and a son born in 1994.
In 2001 the plaintiff, her husband and children returned to Australia and have resided permanently thereafter in Australia.
Prior to the accident, the plaintiff was able to undertake all kinds of duties. She had particular expertise in cooking, derived from the experience of assisting in her mother’s café in Rome. The plaintiff would readily make pasta, tomato sauce, pizza dough, and pasta dough. The plaintiff explained that making pizza dough requires strenuous work with both hands. She would regularly make pizza dough and other food for Sunday family lunches.
In addition, the plaintiff was able to undertake all household tasks, including the shopping and cleaning of the street-level home in which the plaintiff and her family reside. She would daily clean the children’s two bedrooms, do the washing for the family, wash the floors, and regularly vacuum the house. She also undertook all the food shopping and would walk the family’s two dogs.
The family enjoyed a strong social life with their family and friends, and usually entertained at their home three or four times per month, for dinner. She would often drive her car three or four times per day.
After the accident, the plaintiff noticed a marked change in her ability to perform not only her work, but also her household tasks. Because of the difficulty in using her wrists in making pizza dough, she does not cook to the same extent as previously. She is unable to lift heavy bags of shopping; whereas she would shop for the family once per week prior to the accident, she now undertakes smaller shopping purchases daily to avoid lifting heavy bags. To minimise her pain from her left shoulder and wrist, she places heavy items at the back of the vehicle.
In cleaning the house, her husband, who is usually employed as a painter, vacuums the upstairs of the house and the lower bedrooms, whilst the plaintiff vacuums the lounge, kitchen and sunroom on the middle level. By this means, she can undertake the vacuuming without having to lift the vacuum cleaner to the upper or lower floors. The plaintiff finds that doing the laundry now requires the assistance of her husband to hang clothes to dry. The plaintiff is able to attend to usual cleaning duties, subject to the above.
Extent of household assistance
In her evidence in chief, the plaintiff described the extent of the household assistance she received from her husband and, for a limited period, her daughter. The plaintiff stated that she did ‘everything in the house’ and that her daughter helped her until she went overseas.
The plaintiff’s husband, Alvaro Di’Giannicola, testified that, after the accident, his wife ‘slowed down’ in all respects, for approximately five to six months. He estimates that he provides approximately one and a half days per week of assistance in undertaking various household activities. In cross-examination, Mr Di'Giannicola acknowledged that he often left for work in the early hours of the morning in order to start work at 6 am, but following his wife’s motor vehicle accident, he tried to work fewer hours for approximately five to six months so that he could assist his wife in household activities. He states that he does approximately ten minutes a day of vacuuming in the house, or about one to one and a half hours over seven days, and spends about two to three hours per week mopping the floors. He does washing approximately five minutes each day and sometimes assists his wife in the kitchen, undoing cans. He also assists her washing her hair in the shower approximately once per week.
The plaintiff’s daughter, Ms Noemi Di’Giannicola, stated that her mother was very shaken up following the accident. Ms Di’Giannicola was working two jobs at the time of the accident. She worked full-time at a pharmacy approximately 15 minutes drive from the family home. She commenced work at 8 am, and usually worked until 4 pm to 4.30 pm. Simultaneously, she was studying for a Bachelor of Criminology at Griffith University. She put her studies on hold from July until December 2011 to assist her mother.
Her second job was as a receptionist at Rydges Capital Hill Hotel, where she was employed on Mondays, Wednesdays, Friday and Sunday evenings. She would work there six to seven hours a day, immediately following her work at the chemist shop, often not returning home until after midnight. On Saturday nights she studied.
Due to her mother’s hand cast, she helped her mother full-time for a period of two weeks. She attended to household chores such as cleaning, mopping the floors with her father, cooking, vacuuming, and washing. Twice a year she would carry seasonal changes of clothing from the garage to the house as her mother did not appear to have the strength.
Ms Di’Giannicola stated that she did approximately two hours of ironing per week, that the mopping with her father would be done over two to three times per week and that she did most of the cooking, including cooking every night. She would also take the two family dogs for a walk.
In late March 2012 until late October 2012, Ms Di’Giannicola travelled overseas and then returned to the home. However, she commenced travelling overseas again in May 2013, returning in approximately September 2013. She remained at home for a short period before moving to her own accommodation.
In response to a question put to her by the defendants that she was exaggerating her assistance to her mother, Ms Di’Giannicola rejected such proposition, claiming that her mother had helped her to live her life, and that she felt it was only fair that she also assisted her mother.
Plaintiff’s Medical Evidence
Evidence of Dr McNicol
Dr David McNicol is the plaintiff’s orthopaedic surgeon and she was examined by him on 19 December 2012. In a report dated 9 January 2013, he relevantly stated:
Ms Papp was the driver of a car travelling at low speed in a car parking station which was allegedly hit by a four-wheel drive vehicle on the driver’s side. Ms Papp has sustained an injury to her right wrist in particular the lunotriquetral ligament and has had a painful restricted left shoulder following the accident. She has been reluctant to have further investigations and/or surgery for her left shoulder.
Dr McNicol’s diagnosis was as follows:
1. Rupture of the right lunotriquetral ligament of the wrist.
2.Pain and restricted movement of the left shoulder the cause of which is undiagnosed at this time.
Dr McNicol continued:
In my opinion, Ms Papp’s conditions are consistent with the stated cause. I was not made aware of any other related injuries, illnesses or diseases and no previous employers were involved.
In my opinion, Ms Papp should undergo an MRI arthogram of the left shoulder. Subsequent to that she may require review by her treating specialist Dr Sindy Vrancic. Arthroscopic assessment of the joint may be indicated.
In the meantime, it is my opinion, Ms Papp is fit for her full duties working at Woolworths and a part-time work working at Zamel’s (sic) Jewellers.
With respect to the effect these injuries had on recreational social functioning, Ms Papp informed me she can no longer take the family German shepherd (sic) dog for walks anymore. She similarly does not have the strength in her right wrist or left shoulder to control this strong dog. She has also ceased swimming which I gather she used to enjoy.
Psychologically Ms Papp has had anxiety with respect to returning to driving and understands she has undergone psychological counselling.
Prognosis:
1. Left Shoulder
In my opinion the prognosis in the short-term remains guarded. In the medium-longer term the prognosis remains poor for return of normal function without further investigation and/or treatment.
2. Right Wrist
In my opinion the prognosis in the short-term is fair to good. In the longer term it is possible she may develop degenerative arthritis in the right wrist. This would be secondary to her carpal ligament injury between the lunate and triquetral bone.
In his report dated 24 November 2014, Dr McNicol obtained a history from the plaintiff again, and noted the following:
Ms Papp informed me that there had been no significant progress or alteration in her symptoms since I saw her on 19 December 2012. She informed me that she continues to live with pain and disability in her right wrist and left shoulder. She remains apprehensive driving the car.
In this report Dr McNicol noted that the plaintiff had returned to work full-time at Woolworths and that her right wrist pain had affected her work ‘particularly with repetitive right hand work placing multiple promotion cards on shelves and lifting and moving cash boxes.’ He noted that she now worked at the Cash Office and handled the payroll.
Dr McNicol noted that the plaintiff required more help from her housework, which her husband provides, and that her wrist pain was eased by taking two Panadol tablets in the morning and night, and two Nurofen tablets. The plaintiff informed Dr McNicol that her right wrist remained weak and occasionally swells.
As to her left shoulder, the plaintiff informed Dr McNicol that her pain is variable, but is worse with any attempt at movement, noting:
She experiences an occasional clicking sensation within the joint. She has to avoid sleeping on her left side as this aggravates her shoulder. Her symptoms are eased to some extent by massage and ice. As mentioned above she takes regular Panadol or Nurofen analgesic medication. She is not able to manage overhead activities for example hanging clothes on the line. She finds that physiotherapy has not been effective in helping her regain movement. She has not had the recommended MRI scan of her left shoulder as she cannot afford to pay for this investigation.
Dr McNicol considered that the plaintiff had made very little progress since last seen on 19 December 2012, continuing to have a very painful left shoulder with a restricted range of movement and pain in her right wrist and carpal region, particularly with repetitive movements or with heavy lifting. His diagnosis was as follows:
1.Rupture of the right lunotriquetral ligament of the wrist with possible superadded osteoarthritic change.
2. Undiagnosed left shoulder pain with restricted range of movement.
As to the plaintiff’s prognosis, Dr McNicol considered that the prognosis for the left shoulder in the short-medium-long term remained poor without further investigation or treatment. He observed mild muscle wasting in left shoulder particularly the left deltoid muscle. He considered that she was fit for her current duties at Woolworths. His prognosis was as follows:
1. Left Shoulder: Poor without further investigation and treatment.
2. Right Wrist: Short-term is fair. Long-term is dependent upon investigation and opinion of an orthopaedic surgeon specialising in hand conditions.
Dr Leon Le Leu, occupational specialist, has provided two reports. The first report is dated 24 July 2013 which recites much of the history of the plaintiff’s injuries and of her difficulties with her wrist and left shoulder. Dr Leu stated in his report dated 24 July 2013 that the x-ray of the plaintiff’s right wrist appeared normal, however, the MRI recorded:
“Small luno-triqetral ligament (membranes portion) full thickness tear”.
Dr Leu observed that the plaintiff was right handed and that: “There was marked reduction in the right-hand dominance”.
In respect of the plaintiff’s left shoulder, Dr Leu referred to the x-ray report which stated:
“Biceps and all four components of the rotator cuff are intact. There is thickened subacronial bursa, and there was bursal impingement...”
Dr Leu concluded that there was “reduction in the right wrist extension, and marked reduction in the normal right hand dominance”.
As to the plaintiff’s left shoulder, he concluded:
“Major reduction in many of the standard movements of the left shoulder...”
In his later report, dated 28 November 2014, he observed injuries the same as that referred to by Dr McNicol, and noted that because of the impact of those injuries, the plaintiff would probably be able to work only for a further seven years. He noticed a weakened right hand grip of the plaintiff and believed that this function would slowly deteriorate in the future, and that the left shoulder may suffer further deterioration.
Evidence of Dr Skinner
The plaintiff consulted Dr Yvonne Skinner, psychologist, who has provided reports dated 14 February 2013 and 20 November 2014. In her report of 14 February 2013, Dr Skinner found that the plaintiff had suffered a ‘severe emotional reaction in the immediate aftermath of the accident, with severe tremor and anxiety symptoms.’ She also reported that the plaintiff became phobic about driving and avoided driving. After undergoing a graduated desensitisation program she was able to drive a short distance to work and return, but she avoided underground car parks. Dr Skinner recommended that the plaintiff take six to ten sessions with a psychologist to increase her driving distance, to assist her to overcome her fear of car parks and to teach her to deal with her anxiety symptoms. Dr Skinner concluded:
Ms Papp is motivated to overcome her difficulties. I think she will remain nervous with anxiety in relation to driving, but she is attempting to gradually overcome her difficulties and over time I would expect some slight improvement.
On 18 November 2014, the plaintiff again consulted Dr Yvonne Skinner. When interviewed on 18 November 2014, the plaintiff informed Dr Skinner that, since her previous visit to her, she had witnessed a motor vehicle accident. The plaintiff informed Dr Skinner that she found it was terrifying and that she “lost it” and commenced to scream. Her daughter told her to ‘shut up’. The plaintiff explained that she considered this was important because she felt that the witnessing of the accident ‘put me back because I’ve witnessed a car accident’.
Dr Skinner noted that the plaintiff rejected such suggestions of undertaking lessons because she feared she might be pressured into driving distances before she felt comfortable doing so.
Evidence of Dr Duckworth
Dr David Duckworth, shoulder and elbow surgeon, has provided a report dated 14 August 2013. He noted that the plaintiff had returned to work in March 2012 and was on normal duties but “has to be careful with her shoulder”. Dr Duckworth provided the following prognosis:
The prognosis for Ms Papp is guarded. She still has a chronic problem affecting her left shoulder two years following her injury. She may always have difficulty with overhead use of her arm, heavy lifting and repetitive use of her arm out to the side.
Significantly, Dr Duckworth did not recommend surgery but did recommend an MRI scan of the plaintiff’s left shoulder. He concluded that:
Ms Papp had no pre-existing problems affecting her left shoulder. Her current shoulder condition is related to the accident.
Evidence of Dr Perera
Dr Ranji Perera of the Gungahlin Medical Centre is the plaintiff’s general practitioner. Clinical notes of Dr Perera record many visits of the plaintiff both prior to and subsequent to her motor vehicle accident. He referred her to Dr Sindy Vrancic, upper limb arthroplasty and orthopaedic surgeon. Dr Vrancic examined the plaintiff’s right wrist and, in her report dated 9 August 2011, reported that there was a central tear in the membranous portion of the lunotriquetral (LT) ligament. Dr Vrancic said:
The natural history of an LT tear depends on the size of the tear and the response to anti-inflammatory medication. The tear is unlikely to heal on its own and will always be present. The membranous portion of this ligament is not structurally important and is unlikely to cause any mechanical instability of the wrist.
Dr Vrancic’s report also states:
I have taken the liberty of injecting her left subaromial space today with celestrone and local anaesthetic, which relieved her symptoms within 5 minutes and made her shoulder feel more free. This confirms a diagnosis of impingement syndrome and early management including injection, Mobic, and referral to physiotherapy may resole her symptoms and not require surgical intervention. I have referred her to Rhianna Hughes for physiotherapy and cuff rehab.
Dr Vrancic referred the plaintiff to a hand therapist (Ms Cara Gilbert) and stated that, as a last resort, a wrist arthroscopy and debridement of the tear might be warranted. The tear was unstable. She also observed that an LT tear can cause ‘insidious pain long-term’.
Thereafter, the plaintiff saw Dr Vrancic on 2 November 2011 who provided a second report. Dr Vrancic reviewed the plaintiff and recorded the plaintiff had “improved dramatically” under physiotherapy. The relevant portions of states:
[The plaintiff] has improved dramatically under the guidance of her physiotherapist. I note she has been discharged from her hand therapy clinic and she has regained full functional use of her hand.
The shoulder however is much slower to return to normal, however she has been diligent with her exercise and postural control and is now managing well in the workplace on her limitations.
I have updated her to 5 hours per shift on normal days and I am happy for you to increase upgrading her as able.
Evidence of Ms Gilbert
Ms Cara Gilbert, occupational therapist of the “Shoulder to Hand Clinic”, provided her report on 12 August 2011 which noted that the right hand had been treated conservatively for a period of one month after her motor vehicle accident. She noted the initial mobilisation in a back slab, then in a sling.
Ms Gilbert provided a second report dated 7 September 2011, which records relevantly as follows:
I have reviewed and discharged [the plaintiff] from hand therapy today after she has regained full functional use of her hand. She still has some limitation due to ulnar sided wrist pain which I expect will continue to reduce with normal functional use. [The plaintiff] is due to return to work in the next week or so, initially on reduced duties and gradually building these as her hand improves and strengthens.
On examination today [the plaintiff] demonstrated full range of motion in fingers, thumb and wrist and is able to grasp and load bear with the hand comfortably. On palpation there are no abnormalities detected in the carpus, although the TFCC is slightly tender on stress test.
[The plaintiff] is not limited by her hand and I have therefore discharged her. I would be happy to see her again in the future should the need arise.
The plaintiff acknowledged that she never returned to Ms Gilbert for further treatment.
The ‘Fit To Manage’ Organisation
Thereafter, the workers’ compensation insurer for Woolworths, namely the Government Insurance Office referred the plaintiff to an organisation known as ‘Fit To Manage’. The letterhead of this organisation describes itself as ‘Rehabilitation Specialists Posture Pain Therapists’. One of the persons shown on the letterhead is Ms Bronwyn Thompson, who wrote a report dated 8 December 2011 in which she stated:
Upon examination of Ms. Papp I found her to be quite restricted in her range of movement through her shoulder girdle region, neck and in particular her pectoral muscle groups. The ongoing left shoulder symptoms Ms. Papp has been experiencing are in my opinion primarily coming from her restricted infraspinatus, teres major/minor and latissimus dorsi muscle groups (under-utilised). The restricted range of movement in these above mentioned posterior muscle groups is often the result of long-term postural imbalances, which was in keeping with Ms. Papp’s poor postural presentation and given the nature of her workplace duties, it is understandable as to why her current left shoulder symptoms are increasing with her workplace duties.
The plaintiff went through various exercises using machines to gain strength in her left shoulder and right wrist.
It appears that the plaintiff received no physiotherapy from February 2012 to November 2013 for any injury. However, between November 2013 to January 2014 she underwent physiotherapy for her left shoulder.
A rehabilitation closure reported dated 22 March 2012 was tendered. The report records:
Ms Papp reports requiring minimal assistance with her self-care and domestic duties, specifically tasks requiring prolonged repetitive movements of the right wrist and left shoulder.
Evidence of Dr Makeham
The plaintiff had indicated in her evidence in chief that she was now suffering from tinnitus. The plaintiff acknowledged that she had not been knocked out in the collision, and had not sustained any head injury.
A report of Dr Tim Makeham dated 10 December 2013 was tendered. Dr Makeham noted the absence of any head injury, and that the plaintiff was having difficulty in hearing in the presence of background noise, and that she had had tinnitus ever since.
In his report, Dr Makeham concluded:
It is plausible that her symptoms and tinnitus could be due to a head injury at the time of her accident. There are other explanations which are also plausible. She does not have a preceding audiogram.
Despite the recommendation of counselling, the plaintiff acknowledged that she had not sought counselling for her hearing difficulty. Since the plaintiff has made no submissions to suggest that any hearing difficulty is accident-related, the Court will disregard this disability.
Defendants’ medical reports
The medical experts retained by the defendants assert that the plaintiff is fully recovered from her injuries and has been so since the completed physiotherapy to her right hand in October 2011.
The Motor Accident Report
The defendants tendered a Motor Accident Medical Report which referred to the injury sustained in the motor vehicle accident. In such form, the plaintiff itemised her difficulties. It is sufficient to note that such difficulties accorded with the evidence she provided in examination in chief. The form recorded that the plaintiff had also suffered a previous injury in an industrial accident on 26 October 2010.
Evidence of Dr Silver
The defendants relied upon Dr John H. Silver, occupational physician who has provided a report dated 10 May 2012 which refers to a consultation which took place on 7 May 2012. Having obtained a history, Dr Silver reported:
[The plaintiff] is currently having no formal medical treatment although she uses over-the-counter Nurofen that she takes once per day, 1 tablet in the morning. She is having no formal paramedical treatment, although she said that she does exercises aimed at increasing her range left shoulder movements, as she was advised at Fit To Manage.
DAILY ACTIVITIES
She has returned to both her jobs without restriction and continues to be the principal housekeeper, although she said that she has difficulty with reaching overhead with her left upper limb, including blow-drying her hair.
As to the clinical examination of the plaintiff’s right wrist and left shoulder, Dr Silver recorded:
Right wrist
There was no abnormality on examination of the wrist. There was no swelling and there was a full range of all of extension, flexion, radial deviation, and ulnar deviation, equal to that on the left side. Likewise, the grip strength was equal and powerful on both sides.
Left shoulder
Initially the active movements of abduction and flexion were limited to the horizontal but, with guidance of these movements, she demonstrated a full, unrestricted and unresisted range of all six shoulder movements of flexion, extension, adduction, abduction, and both external and internal rotation, although she groaned and complained that these movements, particularly flexion and abduction, were painful.
She re-dressed freely following the formal physical examination, with no limitation of left shoulder movements as was demonstrated when she was undressing.
All movements were done actively. Where passive movements were required, they were done slowly and gently and were, if uncomfortable, limited to the point of onset of discomfort.
Dr Silver considered that the plaintiff had sustained soft tissue injuries to her right wrist and left shoulder, but no injuries of significance to other anatomical areas. He believed that the plaintiff had recovered well from the injuries and had resumed all of her normal activities, ‘both at work and domestically where she confirmed and reiterated that she is responsible for all of the housework.’
Evidence of Dr Walsh
Dr John Walsh, orthopaedic surgeon, has provided two reports dated 29 July 2013 and 30 July 2014. Dr Walsh reviewed an x-ray of the plaintiff’s left shoulder, which showed no abnormality; and an ultrasound of the left shoulder dated 21 July 2011, which showed some thickening in the subacromial bursa. He also referred to physiotherapy reports.
Dr Walsh considered that the plaintiff had a spraining injury to her right wrist, a contusion to the rotator cuff on the left shoulder and an emotional reaction to the accident. He acknowledged that the contusion to the left shoulder could have produced a swelling in the rotator cuff, causing impingement due to irritation of the subacromial bursa. He noted that the injury to the right wrist has produced a partial tear to the ligaments between the carpal bones, as noted on the MRI scan.
Dr Walsh noted the plaintiff had benefitted from subacromial injection of local anaesthetic and that the plaintiff was reluctant to undergo surgery. He stated:
I note that she has been able to manage at work following a rehabilitation program and remains fit for her work.
No long-term disability is anticipated and there is no increased risk for the development or acceleration of degenerative change in the shoulder or wrist following this accident.
In his report of 30 July 2014, Dr Walsh reported on the injuries that were suffered by the plaintiff at work when she was struck by a pallet on 28 October 2010. He noted that the records of that injury did not refer to shoulder pain. He doubted whether the plaintiff’s ongoing symptoms were contributed to by the accident in October 2010.
Evidence of Dr Samuell
Dr Doron Samuell, clinical and forensic psychiatrist, has provided a report dated 14 August 2013. Having taken a full history from the plaintiff, he assessed her as having ‘some mild ongoing anxiety that is confined to driving. It is a direct result of the motor vehicle accident. It does not cause significant impairment.’
Dr Samuell noted that the plaintiff had had some treatment and expressed the opinion it was reasonable that she had psychological intervention for her specific phobia. He noted that such treatment had been only partially effective. He considered that she was fit to carry out her former duties.
Cross-examination
The plaintiff was extensively cross-examined concerning the events of the day of the accident, prior accident and post-accident injuries and her work practices.
As to the accident day, the plaintiff acknowledged that immediately following the accident, she was able to attend at a police station at Gungahlin, which is close to the accident site, to report the accident. The plaintiff considered that the police were very rude to her. Since no person was injured in the accident, the police referred her to the NRMA office nearby. The plaintiff attended that office and reported the accident. Thereafter the plaintiff returned to the accident site and removed her possessions from the damaged vehicle. It appears that the tow trucks were unable to gain access to the car park and, accordingly, the plaintiff’s son and husband were required to push the car to a place where it could be removed.
At the end of that day, the plaintiff was able to complete an AFP Crash Report with her son, using the internet.
The plaintiff explained that during the night following the accident, she had a bad night, was bruised and applied ice to her hand before her husband got up. The plaintiff stated that she kept on telling herself ‘I am not hurt’. The plaintiff did not recall if her left shoulder came into contact with any part of her vehicle. The AFP Crash Report records that she was wearing a seatbelt at the time of the accident.
The plaintiff acknowledged that she consulted a legal practitioner approximately 12 days after the accident and said that she did so because of advice from a friend.
Plaintiff’s Other Medical Issues
The plaintiff has sustained injuries both prior to and subsequent to her motor vehicle accident.
The Boxes Incident
The first injury which was raised in cross-examination was the fact that the plaintiff had sustained an injury on 4 May 2010 at work when she was lifting some heavy boxes (“the boxes incident”). On this day, the plaintiff was engaged in the moving of such boxes, which required her to bend up and down frequently as part of her job, which caused great pain. In fact, Dr Perera’s notes for 4 May 2010 record that on the previous Friday, 30 April 2010, the plaintiff developed severe back pain, arising from the movement of the boxes, a sharp pain going down both legs, and that the pain responded to a Nurofen patch. The notes report that the pain resurfaced in the night, resulting in excruciating pain, nausea, and dizziness. The plaintiff was seen at ‘calvary [emergency department’; where the notes record that she responded to analgesia and that she was sent home on Saturday during the morning. On the Saturday and Sunday the pain was tolerable and she was able to walk around. According to Dr Perera’s notes, the following entry is recorded on 4 May 2010:
Went to work yesterday again. The constant bending at work aggravated her lower back pain also leg muscles too ache now.
Dr Perera’s notes record that the reason for the consultation was lower back sprain for which she prescribed Brufen.
The Pallet Incident
The second accident occurred on 25 October 2010 when the plaintiff was struck by a trolley transporting a pallet of vegetables (“the pallet incident”). According to the medical notes of Dr Perera dated 28 October 2010, the plaintiff stated that she was run over by a pallet, was hit on the right side and fell onto her left shoulder / left side and then left back. The notes record that the plaintiff continued to work, but on the evening of the accident she developed pain on her left lateral chest and back and could not sleep. The plaintiff continued to work on the following Tuesday and Wednesday, but as the pain deteriorated, she did not attend work on Thursday 28 October 2010.
Dr Perera noted that, whilst no bruising was visible, she was tender over the left lateral chest / left scapular region and left back and left shoulder, and that all movements were restricted due to pain.
The reason was described as ‘soft tissue injury to left upper back, lateral chest and left shoulder.’
For the purposes of these proceedings, the plaintiff consulted Dr Le Leu, occupational physician. The plaintiff first saw Dr Le Leu on 22 July 2013. While Dr Le Leu’s notes record the motor vehicle injury, in which he referred to her by hand as ‘very swollen’, ‘like an eggplant’, the plaintiff did not refer to any prior injury.
In his report, dated 24 July 2013, Dr Le Leu records under the heading ‘Previous Medical History’ the following:
· She had been well with no shoulder or wrist problems.
It was put to the plaintiff that she had deliberately omitted any reference to the pallet injury in the hope of maximising her claim for compensation in these proceedings. The plaintiff denied such assertion. The plaintiff explained that she did not raise either injury since she had recovered from both injuries and did not take days off work resulting from the injuries, and she felt therefore that it was unnecessary to refer to those incidents.
The Trolley Incident
The next injury caused at work occurred on or about 8 March 2014 when the plaintiff was struck by a trolley (“the trolley incident”). The plaintiff acknowledged when it was put to her that she had taken a week off work and was on workers’ compensation, resulting from an injury she sustained at work on Saturday 8 March 2014. The notes of Dr Linda Shean (a general practitioner of the Gungahlin Medical Practice) dated 17 March 2014 recorded relevantly the following:
Upper arm constant pulling feeling. Pain ++ with movement.
Injured arm initially 2 ½ years ago in MVA (July 18 2011)
o/e – left shoulder bruised laterally. Tender ++. Unable to move shoulder in any direction more than 30 degrees.
Imp-soft tissue injury on top of previous injury.
Plan – 1 week off work. Review next week if not better. May need imaging if not settling.
Dr Shean’s entry for 24 March 2014 records that the plaintiff’s left shoulder was much improved and that she was ‘almost back where she was before trolley hit her’. The entries continue, relevantly:
Left shoulder SL tender laterally. Bruising has settled. Flexion 90 degreess (sic). Abduction 60 degrees.
Emotionally feels she is having a setback. Due for hysterectomy next month.
Wants to return to work in restricted duties.
Seeing Woolworths coordinator and Eime rehab coordinator.
Review in one week for weekly physio.
Defendants’ submissions
The defendants were highly critical of the credit worthiness of the plaintiff and relied upon matters referred to hereunder in support of that submission. First, the defendants point to the fact that the plaintiff engaged a lawyer within 12 days of her accident. The defendants submit that she did so to maximise her claim for compensation. The plaintiff refutes such claim, saying that she did so on the advice of a friend.
The second matter relied upon is the history of the plaintiff’s interview with the defendants’ orthopaedic surgeon, Dr Silver.
The plaintiff stated that the examination took place by Dr Silver in the space of no more than five minutes. She recalled the examination by him was very painful. She said that she was not asked to lift her left arm, but instead Dr Silver pulled her left arm up and down and commenced a flapping movement. When she complained of pain, the doctor was alleged to have said ‘What pain? You don’t have any pain.’
The plaintiff said that she had to remove some of her clothing for the purpose of the examination and she was only able to put on her shirt, because of the pain which had been generated by the examination and her shock. The plaintiff was deeply distressed at the conduct of Dr Silver.
Subsequent to the consultation, the plaintiff complained to her solicitors of Dr Silver’s treatment of her, making various allegations. Those allegations were referred to the defendants’ insurers. Dr Silver responded by providing a conference tape recording of the consultation. The tape recording refutes the serious allegations made by the plaintiff concerning the duration and events of that consultation.
Next, the defendants refer to the plaintiff’s failure to inform various doctors of work-related accidents. The defendants say that the history of the boxes incident was not provided to her own specialist, Dr McNicol. In response, the plaintiff states that she had no ongoing difficulties from that injury at the time of her car accident and did not mention it for this reason. As to the pallet incident, the plaintiff says that she had no time off work and had completely recovered from that injury by the time of her motor vehicle accident. The clinical notes of Dr Perera for 28 October 2010 state as follows (verbatim):
on Monday was run over by a pallet
Hit on rt side
Fell onto left shoulder /left side and then left back
Felt ok at that time
Got up and continued to work
Monday night developed pain on left lateral chest and back could not sleep
Worked on Tuesday as well
Saw another lmo on Tuesday
Was advised soft tissue injury
Advised to take days off and was given pan forte
Went back to work again on Wednesday
Pain continued
Pain worse this morning could not go to work today
Pain aggravated by movements
Pan forte helps but recurs
Examination:
No bruising visible
Tender over left lateral chest/left left scapular region and left back
Left shoulder
All movements restricted due to pain
Cervical thoracic nad lum sacral spine nad
AE equal on both sides
Reason for contact:
Soft tissue injury to left upper back left lateral chest and left shoulder
Management:
Cxr rib view to exclude rib fracture
Dr Perera prepared a letter for ACT WorkCover but it is unclear whether time was taken off work. The plaintiff, in cross-examination, denied that she hurt her left shoulder in this accident. However, the clinical notes indicate to the contrary. The notes also indicate that the plaintiff was unable to go to work on 28 October 2010 because of pain.
The motor vehicle accident then followed on 8 July 2011. The defendants submit that the plaintiff has grossly exaggerated the duration of any disability arising from those injuries.
As to the hand injury, the defendants refer to the medical report of Ms Gilbert dated 7 September 2011 (set out above) and submits that it establishes that the plaintiff’s hand injury was resolved by that date. The defendants submit that this report is evidence that the plaintiff never felt it necessary to return to Ms Gilbert for further treatment to her left handed wrist. Further, the physiotherapist’s note of 8 September 2011 records that the plaintiff was “happy with hand”. This was the second physiotherapy treatment. On 12 September 2011, the physiotherapy notes record that the plaintiff reported that the plaintiff’s shoulder was improving, that she might be “overdoing her exercises and housework”. A subsequent physiotherapy treatment on 19 September 2011 (the fourth physiotherapy treatment) records a statement by the plaintiff that she had abdominal pain during the week which had limited her ability to walk or sleep.
On 23 September 2011, the plaintiff was reviewed by her general practitioner. The plaintiff suggested to the general practitioner that her left shoulder might need surgery.
The plaintiff returned to work, on modified duties, on 26 September 2011. She continued to have physiotherapy. On 17 October 2011, the note records that the plaintiff had stated continuing improvements and that she was now able to carry her handbag. The general practitioner’s notes of 21 October 2011 record that the plaintiff had finished hand therapy but still had some pain and that the shoulder had improved with physiotherapy. Thereafter, the plaintiff saw Dr Vrancic on 2 November 2011 who provided a report.
On 6 January 2012, the plaintiff returned to full-time hours although on modified hours. On 3 February 2012, she stated to her general practitioner that she had no pain at the end of the day and would try full normal duties. On 6 February 2012, the plaintiff returned to pre-motor vehicle accident duties. Some treatment continued, however, with the Fit to Manage Program.
Consideration
The Court has had the benefit of seeing the plaintiff and assessing her evidence. The Court concludes that, while the plaintiff has been honest with her explanation of her injuries, she was prone to much embellishment and exaggeration when giving her evidence.
The Court accepts that, before the accident, the plaintiff was very active and was able to cope with all household activities and those at work. Since the accident, the plaintiff has endeavoured to maintain her full-time employment which she has been able to do because her employer has given her different duties. In the household, the Court accepts that the plaintiff now requires assistance, due to her ongoing pain in her right wrist and left shoulder, in undertaking some household tasks. However, the Court is not satisfied that extent of that assistance is as significant as the Plaintiff claimed. The plaintiff’s evidence as to whether any continuing pain is related to her motor vehicle accident is also problematic.
The plaintiff presented as being highly motivated both in the performance of domestic tasks and in her work. The plaintiff asserted that, so far as her right wrist is concerned, the pain she suffers depends upon the use of her right wrist. She explained that, even using a barcode scanner, her wrist becomes painful after use because of the repeated movement involving the use of her wrist. In the past, she had been able to scan up to 4,800 tickets per day. The plaintiff is concerned that if she cannot maintain her workload, her employer will regard her as incapable of performing these duties, which were duties provided to her in view of those which she was fulfilling at the time of the accident. The plaintiff considers that the symptoms in her right wrist are worse than they were 12 months ago.
Summary of Chronology of Medical Evidence
Based upon the above records, it appears that the plaintiff was undertaking her normal duties by 6 February 2012. However, other injuries followed which were not related to her car accident. The medical records show that on 4 June 2013, she suffered pain lifting heavy bags of coins. In February 2013, the plaintiff suffered abdominal pain which culminated in a hysterectomy. On 9 October 2013, the plaintiff reported that her workload at Woolworths had increased and that she was constantly bending up and down, which had aggravated her lower back pain. She also reported that her right wrist pain had recurred for which she was taking Panadol and Nurofen. Also at this consultation, the plaintiff complained for the first time of hearing loss.
Other complaints were contained in notes of physiotherapy treatment of lower back pain were not related to the car accident. The plaintiff sought physiotherapy for that condition on 14, 19 and 28 November 2013. An entry dated 5 December 2013 records that a “big day at work caused increased pain in her left shoulder”. An entry on 13 January 2014 records that the plaintiff had been quite good although not able to swim when at Barrier Reef.
On 20 January 2014 the plaintiff reported to the physiotherapist that her left shoulder had been sore after aggravating it making pizza dough and that, but for that, she was “going ok”. On 13 February 2014, the notes record that the plaintiff injured her left shoulder attempting to catch her falling niece. This matter had not been referred to in evidence previously and was not referred to by the plaintiff in her medical history. However, by 4 March 2014, the physiotherapy notes record that her shoulder had settled and that there was no “more tightness between her shoulder blades”.
The plaintiff also experienced pain in her left shoulder resulting from a mammogram on or about 9 October 2013. It is not suggested that this pain was disabling.
The physiotherapy notes record that the plaintiff stated that a trolley was “rammed” straight into her left shoulder and that she reported increased pain and bruising and the shoulder had been painful with any movement. The defendants draw attention to the fact that this incident was not mentioned by the plaintiff. It is unclear whether the plaintiff took time off work resulting from this accident.
The plaintiff’s physiotherapy, which ceased in October 2011, recommenced in March 2014. However, the payments for such physiotherapy were made by the workers’ compensation insurer under a different claim to that of a motor vehicle accident.
Findings
Critical issues in these proceedings are firstly, the duration of the effects of the plaintiff’s injuries to her right hand and her left shoulder and of any ongoing psychological interference; and secondly, the extent to which any other accidents sustained by the plaintiff intervened to break the chain of those effects.
Despite sometimes vague, extravagant and rambling responses from the plaintiff, it is apparent that she has suffered two injuries in the motor vehicle accident which have been disabling. As is evident in the history referred to above, the plaintiff is highly motivated to work and the Court is satisfied that she is a genuinely industrious employee who values her employment, and further, that she would continue in employment for as long as possible. Taking into account the present age of the plaintiff, namely approximately 53 years, she might expect to work for a further 7 years.
There is no evidence to suggest that the plaintiff’s employment is presently at risk. She is able to carry on her work although it appears from time to time that certain tasks allocated to her are either too heavy or too onerous, which results in her being transferred to lighter duties. She has taken no time off work for her motor vehicle injuries since February 2012. However, should no lighter duties be available, then there is the prospect that she could be made redundant.
The attacks made by the plaintiff upon Dr Silver are puzzling. The Court can only assume from the tone of her voice as recorded that she was over-stressed by having to go through such a consultation. Dr Silver presented as a highly experienced and competent orthopaedic surgeon and, as indicated previously, the tape recording of the events of the whole consultation refute the serious claims made by the plaintiff.
In cross-examination of Dr Silver, counsel for the plaintiff put to him that he had misconstrued words by the plaintiff. For example, Dr Silver asked the plaintiff at one stage whether she was the “chief cook and bottle washer”, to which an affirmative reply with given. Dr Silver recorded that conclusion that she was “a/the principal house keeper”. Such a conclusion was strenuously attacked, but the Court concludes that such attack is ultimately of no consequence.
In his report dated 10 May 2012, Dr Silver noted the plaintiff’s resumption of all her normal activities. He concluded that she had recovered well. The Court notes his observation that the plaintiff did not display any difficulty in movement during his consultation. This conclusion is inconsistent with the gasps of pain by the plaintiff as recorded on the tape recording. During the course of the tape recording the plaintiff groaned and made noises but the doctor stated that the plaintiff had a full range of movement and that he was able to guide, without any pressure, the plaintiff’s movements of her arm and shoulders in the directions to the extent of any disability. He also recorded that the plaintiff dressed without difficulty. Having listened to the recording, the Court considers that Dr Silver’s report must be treated with caution. Dr Silver only made passing mention of some groaning in the above extract from his report. Such report does not take into account the future episodes of pain which flare up from time to time in the plaintiff’s wrist and shoulder. The Court considers Dr Silver’s report to be overly optimistic of the plaintiff’s condition and prognosis by failing to have regard to the episodes of pain from which the plaintiff suffers.Dr Silver also testified that there was no muscle wasting in the left shoulder, which, if present, would indicate the plaintiff had been favouring that shoulder. However, Dr Leu noted muscle wasting.
The plaintiff failed to disclose the box incident, the pallet incident and the trolley incident to most of the doctors. While the defendants say that the Court should infer that this was a deliberate act on her part to deceive the doctors and the Court in order to maximise her entitlement to damages, the Court notes that the boxes incident did not have any ongoing symptoms and one medical practitioner (Dr Walsh) who was made aware of this incident did not consider it to be of significance. As to the injury to the left shoulder sustained in the trolley incident, this injury largely resolved by 24 March 2014 according to Dr Shean. The Court does not consider the trolley incident to be responsible for the plaintiff’s current ongoing symptoms.
Despite the puzzling shortcomings in the plaintiff’s evidence, the Court is satisfied that she is a witness of credit. The Court is also satisfied that the injuries she sustained in the motor vehicle accident are such as to render her right hand and shoulder to be readily susceptible to aggravation. Such aggravation could jeopardise her employment and impact adversely upon her ability to perform domestic duties.
The Court is also satisfied that the several incidents, referred to as the box incident, the pallet incident and the trolley incident, have had no lasting impact. The plaintiff’s current ongoing problems arise from her motor vehicle accident and accordingly no occasion for apportionment arises, since the defendants have not discharged the onus of proof that any injury sustained by the plaintiff in any other incidents are responsible for her current condition (see Purkess v Crittenden (1965) 114 CLR 164; and as considered in State of New South Wales v Burton [2006] NSWCA 12 at [67]-[80]).
The Court has considered the medical experts’ opinions. The Court concludes that, probably resulting from her industrious disposition, the plaintiff had returned to full work duties promptly after her accident. However, those injuries have rendered her vulnerable to continued episodes of pain and discomfort. In summary, the Court considers that the defendants’ medical experts have not paid regard to the consequences of ongoing problems which the plaintiff is likely to encounter directly arising from her injuries.
The Court accepts the prognosis of Dr Leu (report dated 9 January 2013) where he stated:
If she decides to have no left shoulder surgery, she will continue to have restrictions as at present, and she will be unable to do work of a moderately to highly physical nature. She will be confined to work with the following restrictions:
· no lifting, carrying, pushing or pulling with both hands greater than 5 kg
· no use of the left hand or arm above the mid breast level
· reduced repetitive work with the right hand.
He continued:
Again, if she decides never to have left shoulder surgery, her continuing restrictions and disabilities will affect her working capacity and employment options.
Dr Le Leu considers that the condition of the plaintiff’s right wrist and in the future, her left shoulder will continue to deteriorate. Such opinion weighs heavily upon the future ability of the plaintiff to maintain her employment and her ability to continue for at least seven years.
Damages
General Damages
The Court considers that the plaintiff is entitled to $90,000.00 by way of general damages. The effects of those injuries are continuing, disabling and painful, which will almost certainly affect her in the fulfilment of both her work and domestic duties. Those injuries can lead to periods of incapacity, which affect her in her employment and her home duties.
The Court allows interest on such general damages at 2 per cent on half this sum for 4.7 years, making a total interest allowance of $4,230.00.
Past economic loss
The parties agree that the past economic loss in respect to the plaintiff’s employment at Woolworths is $11,538.95.
In respect to the plaintiff’s employment with Zamels, the evidence concerning the frequency with which ‘the plaintiff worked at Zamels is unclear. What is clear, however, is that the plaintiff completed a Motor Accident Notification Form (“MANF”) indicating that she worked at Zamels once a fortnight from 4 pm to 9 pm for which she received $97.00 gross per week. The plaintiff’s tax return for 1 July 2010 to 30 June 2011 records income of $3,784.00 from Zamels. The defendants would allow nothing for past wage loss relating to this employment. The Court considers that such a conclusion does not reflect the reality. The plaintiff did work at Zamels, as is verified by tax records. The Court allows this item for past wage loss at Zamels for $2,000.00, being one year at $122.00 per fortnight. This amount is calculated on the basis of six months and adds recognition that the plaintiff may have been unable to resume at Zamels for two months thereafter.
Future economic loss
According to the MANF completed by the plaintiff, her weekly gross wages at the date of the accident from Woolworths was $743.75, and after tax $629.85: that is $32,752.20 nett per annum. The plaintiff claims a buffer of $115,115.00. The defendants allow $5,000.00.
As indicated already, the Court is satisfied that the plaintiff is working in her former employment but occasion arises when pain arises causing her to seek lighter duties. The availability of lighter duties could be suspect in future, especially as she advances in years. The Court considers the appropriate estimate for future economic loss is $50,000.00.
Past out of pocket expenses
The total out of pocket expenses excluding Woolworths wage loss is $23,461.05 and the Court makes an allowance in this sum.
Future out of pocket expenses
The plaintiff asserts that she will require psychological treatment and that ten sessions have been recommended at $250.00 per hour, totalling $2,500.00. In addition, she claims that there should be a buffer for shoulder surgery of $10,000.00 and a buffer for general practitioner visits, physiotherapy and medication at $25.00 per week for 35 years discounted at 3 per cent to $28,450.00. In all, the plaintiff claims for future out of pocket expenses to the amount of $40,950.00.
There is no evidence that the plaintiff will in fact undergo surgery and, bearing in mind the lapse of time since the original accident, the buffer of surgery of $10,000.00 has no basis.
The parties have provided a schedule of physiotherapy treatment, however, it is unclear whether the plaintiff beared any expense personally. The schedule does not permit the Court to make any separate allowance for such treatment.
As to psychological treatment, the Court allows the amount of $2,500.00 as this is clearly indicated as being a required expense.
In respect of future claims for medical expenses, the court considers that the 35 year period, albeit discounted, is excessive. The Court allows $15,000.00 for this expense.
Griffiths v Kerkemeyer (1977) 139 CLR 161
Under this claim, the plaintiff seeks an allowance in respect of the domestic duties which she has been unable to perform, including walking her dogs. As has been established in Wormald v Caftor Pty Ltd t/as Moose Heads Bar and Cafe [2012] ACTSC 97, a claim for the care of domestic pets is not compensable under this head of damage; see [92] – [95]: see also Geaghan v D’Aubert NSWCA 41021/00 at [7], [9], [12], [53] – [67] per Stein JA.
In relation to general house work, evidence establishes that the plaintiff was severely incapacitated in respect of such work for at least six months after her motor vehicle accident. The plaintiff claims $56,888.00 for past Griffiths v Kerkemeyer services.
The Court is satisfied that the plaintiff’s daughter and husband materially contributed to the domestic duties which would otherwise have been undertaken by the plaintiff, but the plaintiff’s claim of six hours per day is excessive. For the period of six months the plaintiff was capacitated, the Court allows for both the services of both the husband and the daughter for 183 days at 4 hours per day at the rate of $35.00 per hour which amounts of $25,620.00. Interest on that sum is assessed at $3,500.00.
As to the future Griffiths v Kerkemeyer claim, the plaintiff claims 3 hours a week for 35 years at $35.00 discounted at 3 per cent totalling $19,490.00. The defendants make no allowance for this allowance.
The Court rejects such claim as excessive. Instead, the Court considers the appropriate allowance, taking into account that she has been able to attend to most household duties is two hours per week at $35.00 per hour for ten years discounted at 3 per cent amounting to $31,626.00.
Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
This component of the claim is assessed at $2,000.00. This sum is not challenged by the defendants.
Superannuation: 11 per cent wage loss
The plaintiff claims $14,482.00 in respect of loss of superannuation on her wages. There is no coherent evidence in relation to this claim and accordingly the Court disallows it.
Orders
The Court orders that:
(a)Judgment be entered for the plaintiff against the defendants in the amount of $261,476.00;
(b)The defendants pay the plaintiff’s costs of the proceedings.
| I certify that the preceding one hundred and fifty one [151] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Cowdroy. Associate: Date: 23 April 2015 |
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