| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : PERRY -v- NOTTLE [2003] WADC 143 CORAM : MULLER DCJ HEARD : 16 MAY 2003 DELIVERED : 20 JUNE 2003 FILE NO/S : CIV 675 of 2002 BETWEEN : SANDRA ELIZABETH PERRY Plaintiff
AND
CRAIG NOTTLE
Defendant
Catchwords: Damages - Assessment - 41 year old female with whiplash injury following rear end collision - Enlargement of symptoms over period of two years following accident - Whether enlarged symptoms attributable to motor vehicle accident - Quantum of general damages
Legislation: Motor Vehicle (Third Party Insurance) Act 1943
Result: Plaintiff's claim dismissed
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Representation:
Counsel:
Plaintiff : Mr K S Pratt
Defendant : Mr J R Brooksby
Solicitors:
Plaintiff : Stephen Browne
Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Southgate v Waterford (1990) 21 NSWLR 2
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Case(s) also cited:
Nil
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1 MULLER DCJ: The plaintiff, who was born on 28 March 1962 and is now aged 41, was injured in a motor vehicle accident in Albany Highway on 10 June 2000 when a motor vehicle driven by the defendant collided with the rear of the plaintiff's either slow moving or stationary vehicle causing her head and neck to be jolted forwards and backwards while she was in the driver's seat. The defendant has admitted that the accident occurred as a result of his negligence and the only issue in the trial was the measure of general damages to which the plaintiff was entitled.
Circumstances of accident 2 Although liability is not in issue the circumstances in which the accident occurred are significant because they have a direct bearing on the likelihood of the plaintiff having suffered a whiplash injury of the severity she claims. 3 On the morning of the accident the plaintiff was driving a Nissan Patrol 4-wheel drive in a northerly direction in Albany Highway. At the time the road surface was wet. She stopped her vehicle in the right lane behind a vehicle making a right hand turn. While her vehicle was stationary she heard the squeal of brakes and the sound of skidding tyres coming from her rear. She looked in her rear vision mirror and saw a car approaching the rear of her vehicle. Realising that a collision was imminent she took her foot off the brake with the intention of moving forwards. At this moment the impact occurred at the rear of her vehicle forcing the Nissan Patrol forwards a distance she estimated at two feet. Upon impact she described how her head was jolted forwards and backwards. She felt an immediate pain in her neck upon impact. Immediately after the impact she turned to attend to her child who was in the back seat and then got out of the vehicle and exchanged details with the defendant. Asked to describe the damage both to her vehicle and that of the defendant she said there were a few scratches and a dent in the chrome on the back of her car and that either the bumper or the roo bar on the front of the defendant's vehicle had become partially detached and forced underneath the front of his car. She agreed the damage to her car was minimal and expressed the view that the rear tyre mounted on the rear of the four wheel drive had absorbed the major force of the impact. Under cross-examination she agreed that in a reply to the defendant's request for answers to interrogatories she had not mentioned any dent to the chrome work on the rear of her vehicle but had confined her description of the damage to scratches to the back bumper bar. She also agreed that no repairs were necessary to her vehicle.
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4 Given the minimal amount of damage to the two vehicles the major question arising from the plaintiff's evidence was whether the force of the impact was sufficient to have caused her head and neck to be jolted forwards and backwards in the manner she described. In support of her evidence the plaintiff called her daughter who had been a passenger in the Nissan Patrol at the time of the collision. Her daughter also testified that the force of the impact had jolted her head and neck forwards and backwards.
5 The best evidence of the force of the impact came from the defendant himself. He described how he had been driving a 1978 Datsun Stanza which he described as a small four cylinder car. He said he recalled following the plaintiff's Nissan Patrol in a northerly direction in Albany Highway. After moving from a stationary position at a set of traffic lights he said he drove cautiously behind the Nissan Patrol. Because the road surface was wet he said he confined his speed to 50-55 km/h. He said he noticed the Nissan Patrol slow down and move into the right lane. He said he reduced his speed to about 20 km/h intending to move into the left lane to pass the Nissan Patrol. He agreed he miscalculated this manoeuvre and, realising a collision was imminent, applied his vehicle's brakes and skidded on the wet surface of the road. At this time he estimated his speed to be in the vicinity of 10-15 km/h. He said the Nissan Patrol was travelling at 5-10 km/h at the time of impact although he later agreed in cross-examination that it may have come to a standstill. As a consequence of the collision he agreed that the roo bar on the front of his vehicle, which had come into contact with what he described as the bull bar on the back of the Nissan Patrol, had been bent backwards a distance of approximately one centimetre. When cross-examined on the speed he had been travelling when he applied his vehicle's brakes immediately before the impact the defendant said he estimated he had been travelling at between 15-20 km/h. 6 I am satisfied the impact was sufficiently forceful to have forced the plaintiff's head and neck forwards and backwards as she claimed. In arriving at this conclusion I believe it is significant that the plaintiff's child, whose evidence I have no reason to doubt, also had her head jolted forwards and backwards by the impact. I realise that there was a significant difference in the mass of each vehicle. The plaintiff was driving a relatively large 4-wheel drive vehicle and the defendant a small four cylinder sedan. I am also aware that the damage to both vehicles was insignificant. The lack of significant damage, particularly to the front of the defendant's vehicle, is certainly inconsistent with any forceful impact. While the spare tyre mounted on the rear of the Nissan Patrol might have
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absorbed most of the impact to that vehicle the absence of any significant damage to the front end of the defendant's car tends to confirm that the impact was minimal. While the roo bar at the front of his car must have absorbed the brunt of the impact I accept his evidence that it was only slightly bent backwards. If the only evidence before the Court was that of the damage to both vehicles, I would unhesitatingly have come to the conclusion that the collision was such a minor one that the plaintiff could not possibly have had her head and neck forced forwards and backwards in the manner she described. But that is not the only evidence. The defendant conceded in his evidence that his vehicle might have been travelling at 10-15 km/h at the time of impact. In cross-examination, as I observed earlier, he said he had been travelling between 15-20 km/h when he applied his vehicle's brakes. I realise these are only estimates and that there is a large margin for error. I am unable to find at precisely what speed the defendant was travelling at the moment of impact but, relying on the estimations he made, it seems more probable than not his vehicle was travelling at about 10-15 km/h when it struck the vehicle in front. The Nissan Patrol, as the defendant conceded in cross-examination, might have been stationary at the time of impact. 7 While Dr Stewart Brash, whose evidence I shall refer to in more detail later, was allowed to give evidence without objection as to the minimum speed a vehicle would have to travel at prior to an impact that might cause minor transient symptoms of whiplash injury, I do not believe his testimony on this point is conclusive. While there was certainly a significant difference in the mass of the two vehicles, and the damage to each was minimal, I find that the defendant's vehicle was travelling at approximately 10-15 km/h when it collided into the rear of the stationary Nissan Patrol and that the force of the impact was sufficient to force the plaintiff's head and neck forwards and backwards in the manner she described. The question whether the movement of her head and neck in this manner produced the injuries she claimed she suffered is the major issue I will have to resolve.
Plaintiff's personal history 8 The plaintiff left school at the age of 15 and completed a secretarial course before working part-time as a sales assistant and later doing office work. In October 1979 she suffered serious injuries in a motor vehicle accident from which she ultimately recovered. In 1982 she did some part-time work as a sales assistant and worked part-time as a barmaid between 1984 and 1989. During this time she married and later had four
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children. She stopped work in June 1989 and has not worked since. After stopping work she did a course in child psychology by correspondence and later a course in natural therapy at Armadale TAFE. She followed this up with a certificate course in the same subject at Thornlie TAFE. Having obtained her certificate she plans to return next July to acquire a diploma. When qualified she hopes to perform both therapeutic and remedial massage from her home. While therapeutic massage is not excessively demanding she believes that remedial massage, which requires some degree of manipulation, might exacerbate her symptoms and confine her to working from home where she can operate at her own level of comfort rather than expose herself to the demands of work in a professional clinic.
The plaintiff's injuries on 17 March 1999 9 On 17 March 1999 the plaintiff fell over a Telstra cable in her garden hurting her left knee and twisting her lower back. She brought a claim against Telstra which was settled in April 2002. These injuries are not without significance. Her general practitioner, Dr Jill Sullivan, treated her for these injuries which were considered serious enough to justify the plaintiff receiving three hours a week of voluntary domestic assistance and remaining on painkillers up to the date of the motor vehicle accident on 10 June 2000.
The plaintiff's symptoms following the accident on 10 June 2000 10 Immediately after the accident the plaintiff went to Armadale Hospital where she complained of pain in her neck. She saw her general practitioner, Dr Jill Sullivan, on 14 June 2000. At that time she said her neck felt stiff and sore and she also felt pain between her shoulder blades. As a consequence of Dr Sullivan's advice she underwent a course of physiotherapy. She found this treatment quite painful but persisted with it between June-September 2000. At the same time she took painkillers and anti-inflammatory medication. 11 In the first six months following the accident the plaintiff said she suffered from continuous pain in her neck. She also described how she had a burning sensation in her shoulder blades. She said her neck felt stiff and she was unable to rotate her head fully. At times she claimed her neck seized up completely and she was unable to move it at all. These periods of seizure occurred approximately once every two to three weeks and would last for 4-5 days. Outside these periods she said she had the
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normal range of movement but suffered from constant pain and a burning sensation between her shoulder blades. 12 In the months that followed there was no significant improvement in the plaintiff's condition. Between September 2000-September 2001 the plaintiff said her symptoms improved slightly to the point where there were longer intervals between periods when her neck would seize up completely. These total seizures occurred monthly rather than weekly. At this time she said she suffered from numerous headaches that would frequently last for as long as four days. She continued to take painkillers to relieve her symptoms. 13 Little change occurred in 2002. When describing her symptoms during this period the plaintiff said she suffered from a constant dull ache in her neck and that her neck continued to seize up regularly to the point where she was unable to rotate her head. When she began full time studies in June 2002 the pain in her neck made it difficult for her to work with her head in an inclined position. 14 The situation in 2003 has really remained unchanged. In her evidence the plaintiff said she still suffers a constant dull ache in her neck and that a total seizure occurs every month or 6-8 weeks. During the intervals between total seizures she suffers from milder symptoms of ache and discomfort. She still suffers from a burning sensation between her shoulder blades and constant headaches. She described how she has a mild headache approximately once a week and a severe one every three to four weeks. She claimed that her severe headaches often lasted for as long as four days and she had to take painkillers and massage her temple with oil in order to relieve the pain. 15 Her lifestyle has been adversely affected by her level of pain. She has to be particularly careful carrying out ordinary household tasks and finds that she has to extend those tasks over a longer period of time to avoid aggravating her condition. While she does not play any sport or take part in any other form of vigorous physical activity she did say that she was unable to play in a vigorous way with her children.
The medical evidence 16 The plaintiff saw her general practitioner, Dr Jill Sullivan, on three occasions following the accident. The first occasion was on 14 June 2000. On this occasion the plaintiff told Dr Sullivan that she was suffering from pain and paresthesia in the muscles of the cervical spine
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and interscapular region. An examination revealed tenderness in the muscles of the thoracic spine and in the paracervical muscles. Dr Sullivan noted in her report of 16 October 2000 that forward flexion, rotation and lateral flexion were all diminished due to pain. On 14 June 2000 she advised the plaintiff to continue with anti-inflammatory drugs. 17 Dr Sullivan saw the plaintiff again on 4 July 2000 when the plaintiff reported a reduction in the symptoms in her neck and interscapular region. 18 When seen again by Dr Sullivan on 6 September 2000 the plaintiff was experiencing variable pain and stiffness in her neck which, in Dr Sullivan's opinion, was responding to physiotherapy. 19 What is apparent is that the plaintiff's description of her level of pain over this period differs markedly from what she told her general practitioner. Whereas in her evidence the plaintiff said that in the first six months following the accident her symptoms remained constant, and that very little, if any, improvement occurred, she apparently told Dr Sullivan that her symptoms had decreased to the point where she was suffering only variable pain and stiffness in her neck by September 2000. 20 While the evidence of Dr Jill Sullivan is of limited assistance in ascertaining the extent of the plaintiff's disabilities I found the testimony of Dr John Ker to be of significant assistance in this area. In his first report dated 30 October 2000, which was some four months after the date of the accident, Dr Ker referred to the ongoing symptoms of pain which the plaintiff reported that she suffered from in the lumbar area, left knee and upper thoracic area as a consequence of her earlier accident when she tripped over a cable in 1999. Turning his attention to the specific injuries allegedly sustained by the plaintiff in the motor vehicle accident Dr Ker said at p 2 of his report:
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I found her, when examined in the prone position, to then report tenderness over the spinous processes of T3 to T5 and, rather more diffusely, at the lumbo-sacral junction. There was no evidence of protector muscle spasm in the extensor muscles of her lumbar spine. She could extend her back through 20˚, flex with fingertips to the toes in the long sitting position and demonstrated 50˚ of rotation to right and left without restriction. She had full straight leg raising." The findings at this examination are particularly significant. What emerged was that four months after the accident the plaintiff, while reporting some pain in the cervical area upon palpation, was able to rotate her neck satisfactorily and showed no sign of pain between her shoulder blades. Significantly she made no complaint of headaches. While she displayed tenderness over the spinous processes in the T3-T5 area and at the lumbo-sacral junction, this appeared to be a continuation of the symptoms she had suffered from throughout 1989. 21 What does emerge from this initial examination by Dr Ker is that the plaintiff's symptoms four months after the motor vehicle accident were minimal. These findings by Dr Ker are particularly significant in the light of his later consultations with the plaintiff and the plaintiff's own evidence of the constant neck pain, periodical total neck seizures, the pain between her shoulder blades and her constant headaches which, she claimed, persisted between 2000-2003. 22 Some ten months later the plaintiff saw Dr Ker again on 14 August 2001. At this examination her complaints and symptoms had changed quite significantly. In his report dated 27 August 2001 Dr Ker commented as follows:
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how a number of tasks such as stretching to above shoulder level or simple lifting tasks would reproduce neck and shoulder girdle pain. … …She reported on palpation of the cervical spine, discomfort in the upper cervical spine and towards the cervico-thoracic junction. There was no protective muscle spasm in the extensor muscles of her neck, right or left. I found that her cervical extension was limited to 15˚ and she was cautious in undertaking cervical extension, cervical flexion was rather better preserved although she reported that the extreme of cervical flexion was uncomfortable for her, her rotational movements of the cervical spine to right and left were full and unrestricted. àI did note that the extremes of abduction in both shoulders she reported as reproducing discomfort in the trapezius muscles and there was tenderness in the trapezius muscle above the left scapula but not the right." What emerged from this examination was that the plaintiff's complaints had broadened to include headaches, stiffness and soreness of the neck and discomfort and pain in the area of the scapula. Given this enlargement of her symptoms and complaints the question arises whether, if found to be true, these could be traced back to the motor vehicle accident on 10 June 2000. 23 Dr Ker saw the plaintiff on 26 August 2002. In a report dated 9 October 2002 he referred again to the complainant's complaint of headaches and cervical spine pain and stiffness. He examined the plaintiff and commented as follows: "I did not find any cervical spine tenderness. Although she was initially a little cautious in undertaking flexion and extension movements, I considered that these were full, although she did describe to me some discomfort in recovering from the fully flexed position. More specifically, I thought that she had some restriction of rotation to the left but full rotation to the right. She does report continuing discomfort from the cervico-thoracic junction to the right of the midline in the trapezius muscle extending from the midline out along the spine of the scapula."
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24 The other medical evidence before the Court was that of Dr Stewart Brash who was called by the defendant. In his first report dated 25 September 2001 he referred to the plaintiff's complaint of constant pain in the neck radiating to the lower occipital area and down to the mid-thoracic spine. Upon examination he was unable to find any evidence of pathology to account for her symptoms. His examination revealed that the plaintiff was capable of extending her cervical spine to 30 degrees and that rotation was slightly reduced on both sides and lateral bending reduced to 20 per cent on each side. All such movements caused neck pain. Given the absence of any anatomical reasons for her symptoms, and taking into account the minimal forces involved in the impact as he understood them to be, Dr Brash was unable to reconcile the plaintiff's stated condition with the lack of any underlying pathology.
25 In a second report dated 6 May 2003 Dr Brash referred to his second examination of the plaintiff when he found that extension of the cervical spine was limited to 5 per cent and rotation to 60 per cent on the left and 70 per cent on the right. Bending was restricted to 40 degrees on the left and to 20 degrees on the right and the plaintiff reported pain with all movements. Once again Dr Brash said he was unable to find any underlying pathology consistent with the plaintiff's decreased range of motion in the cervical spine and her complaint of pain when performing these motions.
Whether injuries related to motor vehicle accident 26 I have already found that as a consequence of the collision the plaintiff's neck and head was pushed forwards and backwards. I am satisfied she suffered pain in her cervical spine and interscapular region and complained of that pain later that day when she attended the Armadale Hospital and again the following day when she saw Dr Jill Sullivan. The next question I have to consider is whether the plaintiff's widening symptomatology between the date of the accident and the date of trial was also related to the accident. This issue was directly raised by counsel for the defendant in his cross-examination of Dr Ker. After referring to Dr Ker's initial examination of the plaintiff four months after the accident when the plaintiff was able to undertake a satisfactory range of neck and shoulder movements Dr Ker was referred to the subsequent restrictions in movement and the additional symptoms that the plaintiff complained of during his subsequent consultations with her on 14 August 2002 and 9 October 2002. Dr Ker conceded that symptoms that were not present on his first examination, but became apparent upon
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later consultations, including the plaintiff's complaints of headaches, stiffness and soreness and restriction of movement, could not be related to what he described as the pathology arising from the motor vehicle accident. While there are several relevant passages in his evidence which illustrate this conclusion the following extracts are perhaps the most significant. At p 68-69: "BROOKSBY, MR: So you would agree with me, would you, Dr Ker, to the extent that those problems were new you couldn't relate those to the motor vehicle accident?---I don't think that there's – I certainly don't see that there has been any new pathology here and it's hard outside of the whole of the symptoms that she complained to find anything different but, no, I don't think that when you start to see people with pain in other areas that you can suggest that there's, you know, any other change in their condition. No, I don't think – I think you're correct in that deduction." Again at p 70: "She had full movement on the first two occasion you saw her?---I thought so, yes. So if she has limitation 3 years later you couldn't relate that to an episode of trauma in June 2000?---I would have thought that you would not be able to relate it to any pathology that arose in that path in that injury, yes. All you found when you first saw her – well, in fact what you did find was only some tenderness to firm palpation at C5 and C6?---That's correct. And full range of movement?---That's what I have recorded. So to the extent that anything has occurred subsequent to that date you would have difficulty relating that to the motor vehicle accident particularly in the context of not knowing anything about the speed or the mass of the vehicles?---No. I think we do take one step back from that. I think you have asked me two questions there and, yes, in terms of being able to relate any increased restriction that she has or any new restrictions that she has, no, that's hard to relate. A restriction that you first
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observed 2 years down the track from a motor vehicle accident, that's quite right." The conclusion I draw from this and the other passages in the medical evidence is that any injury suffered by the plaintiff in the motor vehicle accident would most probably have been evident at her first consultation with Dr Ker on 30 October 2000. At that time the plaintiff complained of discomfort on firm palpation of her cervical spine but was capable of what was described as a satisfactory range of neck movements which she later complained had caused some localised symptoms of pain. Significantly, at the time of that examination she did not complain of pain in the trapezius muscles above either scapula and she had a full and satisfactory range of shoulder movements. She did not complain of headaches and made no mention of the seizures of her neck which resulted in periodical total immobility. 27 I am only prepared to find that the symptoms caused by the rear end collision, which was such a minor one, were those described by Dr Ker in his report of 30 October 2000 following his first consultation with the plaintiff. Given the evidence of Dr Ker I am not prepared to find that the enlargement of the plaintiff's symptoms to include pain between the shoulder blades, periodical and serious headaches and periodical total seizures of her neck were caused by any injury she sustained in the motor vehicle accident.
Damages 28 The maximum amount of damages that may be awarded under the Motor Vehicle (Third Party Insurance) Act 1943 for non-pecuniary loss is currently set at a figure of $240,000. ("Amount A"). 29 Subsection (3) of s3C provided as follows: "(3) The maximum amount of damages that may be awarded for non-pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case." 30 A useful guide to the interpretation of these provisions is to be found in Southgate v Waterford (1990) 21 NSWLR 2. The New South Wales legislation under consideration in that case was set in somewhat different terms to s 3C of the Act but, as it stood at the time, provided that damages for non-economic loss were only to be awarded in cases where there had been significant impairment of an injured person's quality of life and required the court to assess the amount of damages to be awarded for non-
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economic loss as a proportion, determined according to the severity of the non-economic loss, of the maximum amount to which the legislation permitted to be awarded. 31 In their joint judgment Gleeson CJ, Kirby P and Meagher JA said at 440: "There are a number of ways by which trial judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But clearly, because the task in hand is that of awarding damages for 'non-economic loss ', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article 'a' has already been noted. Opinions of what constitute 'a most extreme case' will doubtless vary. But clearly quadriplegia would fall into that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'." See also Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997. 32 Having identified the evidence relevant to those heads of damage that customarily fall within an award of general damages, the next step I am required to take is to postulate what might be a most extreme case in which the maximum amount of damages, currently standing at $240,000, may be awarded for non-pecuniary loss, and then apportion damages by comparing the severity of the plaintiff's non-pecuniary loss with that likely to be suffered in a most extreme case. When the plaintiff's injuries and associated symptoms, as I have found them to be, are compared with what may be regarded as a most extreme case, for example, quadriplegia, it seems clear that the plaintiff's initial injuries and symptoms, their progression and treatment, the prospects of their improvement and the effect they have had had on her enjoyment of life place her case at no more than 5 per cent of a most extreme case. I note that the statutory
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threshold is $12,000. 5 per cent of $240,000 is $12,000. Since the amount of non-pecuniary loss is assessed to be $12,000 s 3C(4) of the Act precludes an award of damages for non-pecuniary loss. 33 I would dismiss the plaintiff's claim.
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