Pidcock v Milosis
[2019] ACTSC 209
•9 August 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Pidcock v Milosis |
Citation: | [2019] ACTSC 209 |
Hearing Dates: | 29–30 July 2019 |
DecisionDate: | 9 August 2019 |
Before: | Murrell CJ |
Decision: | Judgment entered for the plaintiff in the sum of $218,045.25. |
Catchwords: | NEGLIGENCE – CAUSATION – Where the plaintiff was involved in motor vehicle accident – Where the plaintiff was asymptomatic prior to the accident – Where the plaintiff developed Achilles tendon symptoms after the accident – Whether the motor vehicle accident caused the symptoms DAMAGES – PERSONAL INJURY – Assessment of damages – Non-economic loss – Future economic loss – Past out of pocket expenses – Future out of pocket expenses – Griffiths v Kerkemeyer damages |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) ss 45, 46, 99, 100 |
Cases Cited: | Cressy v Miloriad [2016] ACTSC 303 Griffiths v Kerkemeyer (1977) 139 CLR 161 Smith v Pangallo [2017] ACTCA 61 |
Parties: | Margaret Alison Pidcock (Plaintiff) Maria Milosis (First Defendant) Insurance Australia Group Ltd t/as NRMA Insurance (Second Defendant) |
Representation: | Counsel D Richards (Plaintiff) B Wilson (Defendants) |
| Solicitors Baker Deane & Nutt (Plaintiff) Sparke Helmore (Defendants) | |
File Number: | SC 3 of 2018 |
Murrell CJ
At about 8:40 AM on 17 November 2014, Margaret Alison Pidcock (the plaintiff) was injured in a motor vehicle accident while she was driving to work. The plaintiff’s vehicle was stationary at a stop sign when a motor vehicle driven by Maria Milosis (the first defendant) collided with the rear of the plaintiff’s vehicle. The plaintiff claimed damages.
As the compulsory third-party insurer of the first defendant’s vehicle, the second defendant, Insurance Australia Group Ltd t/as NRMA Insurance, is liable to indemnify the plaintiff.
The defendants admitted breach of duty of care. They accepted that the accident occasioned a temporary aggravation of the plaintiff’s pre-existing neck, shoulder, and back pain. The contentious issues in the proceedings were:
(a)Whether the plaintiff’s left ankle injury was caused by the collision.
(b)The extent to which the plaintiff’s left ankle injury has restricted her activities given that, at the time of the accident, her activities were already restricted by the pre-existing condition.
The plaintiff
The defendants accepted that the plaintiff was a truthful witness, but suggested that she may have reconstructed some events and incorrectly recalled others.
As a witness, the plaintiff presented as both honest and reasonably reliable. No doubt, her recall of the events surrounding the accident was not perfect, given that the accident occurred more than four years ago. However, she was prepared to make appropriate concessions. Her evidence about the impact of the accident on her activities was substantially corroborated by other witnesses. The plaintiff also impressed as a stoic person who, as the defendants’ counsel submitted, was motivated to “get on” with her life to the extent that she was capable of doing so.
The plaintiff’s situation prior to the accident
Plaintiff’s evidence
At the time of injury, the plaintiff was 51 years old. She is now 56 years old.
The plaintiff has two adult children. She resides with her partner and her brother. She has lived with both for some years.
During her work life, the plaintiff has held a number of sales and managerial roles. Since about 2006, she has worked at the Embassy of the European Union as an executive assistant to senior embassy staff and, more recently, in general administration and accounting.
During 2010 and 2011, the plaintiff gradually developed cervical and lumbar problems related to her work conditions and associated posture. In August 2011, she made a workers compensation claim. Her employer’s workers compensation insurer was Zurich Australian Insurance Ltd (Zurich).
The plaintiff gave evidence that, prior to the motor vehicle accident, she suffered from neck and lower back pain, which was treated with physiotherapy, chiropractic treatment, and hydrotherapy. She also suffered from a left elbow problem. However, she was fit and petite (a size 10). Before the workers compensation injury, she had enjoyed dragon boat racing and kickboxing. At the time of the motor vehicle accident, she had not returned to dragon boat racing, but hoped to do so. Nor had she returned to kickboxing. Her work injuries meant that she had not taken up golf in a serious way, in accordance with earlier plans. Instead, she swam and regularly walked her dogs and was able to enjoy playing with her grandchildren. Back pain made it difficult for her to bend, and she struggled to clean the bath and shower or weed the garden. Sometimes she had difficulty with vacuuming. However, her ability to undertake domestic cleaning tasks was improving. On her general practitioner’s advice, she was still “taking it easy” as far as strenuous activity was concerned. The plaintiff continued to work, but her work exacerbated her upper body condition from time to time.
Evidence of other lay witnesses
The plaintiff’s partner and two friends (Ms Walker and Ms Genter) gave evidence of the plaintiff’s activities prior to the motor vehicle accident. It was apparent that they had confused the plaintiff’s level of activity prior to her work injury with her level of activity prior to the motor vehicle accident.
However, all three agreed that, prior to the accident, the plaintiff had taken great pleasure in driving her manual Mini Cooper vehicle and going for weekend trips on her motorcycle. Ms Walker said that the plaintiff had enjoyed wearing smart shoes with heels (although not high heels). Ms Genter recalled that the plaintiff was “quite thin”.
Medical evidence relating to pre-existing injury
Prior to the motor vehicle accident, Zurich had required the plaintiff to see a number of doctors. The reports of those doctors generally confirmed the plaintiff’s account of her domestic and recreational activities in the period leading up to the motor vehicle accident.
On 20 May 2013, the plaintiff saw Dr Le Leu, an occupational physician. In his report of 30 December 2013, Dr Le Leu referred to mild degenerative changes in the plaintiff’s cervical spine with some improvement in pain levels and some tenderness in her shoulder and thoracic lumbar areas. The plaintiff was able to walk normally and perform heel/toe walking.
In October 2013, Dr McBurnie, an occupational physician, noted the plaintiff’s report of continuing improvement in upper body symptoms, with ongoing intermittent pain of varying intensity. The plaintiff had told Dr McBurnie that she had no difficulty with driving and that she managed the activities of daily living except for occasional difficulty hanging out washing and vacuuming. Dr McBurnie expected that her symptoms would stabilise over the next couple of months but the plaintiff would be prone to recurrent exacerbation of symptoms. At that stage, the plaintiff weighed 70 kilograms.
In April 2014, Active Recovery, a rehabilitation provider, stated that the plaintiff had reported “limited capacity” in relation to walking. The plaintiff had described herself as at about 40 per cent of her pre-injury status, due to shoulder and lower back pain, resting at about 5/10 on the pain scale, increasing to 7/10 with exertion. In relation to domestic activities, the plaintiff had stated that she was not cleaning the shower and was avoiding heavier activities (other than “usual vacuuming”). As to recreational activities, the plaintiff had not resumed many of her pre-injury recreational activities such as dragon boat racing, although she was swimming. On examination, her squatting was found to display “reduced endurance on rising/unbalanced”. Cervical and lumbar mobility was within normal limits, although there was some discomfort. The plaintiff had expressed a moderate degree of confidence that she could gradually become more active, despite her pain.
In June 2014, Active Recovery reported that the plaintiff had improved and was now at about 70 to 80 per cent of her pre-injury status. The plaintiff was much more confident about her ability to undertake most household chores, socialise, cope with pain, live a normal lifestyle, and, gradually, become more active, despite pain. She had occasional headaches and shoulder aches, right arm pain, and intermittent low back pain. She was not cleaning the shower and was avoiding heavier activities, but her mopping capacity had improved. She had not resumed recreational activities such as dragon boat racing “by choice at this time”. Active Recovery was optimistic about further improvement, describing the plaintiff’s response to their intervention in very positive terms.
On 24 June 2014, the plaintiff told Professor Warfe that she suffered daily constant pain in the whole of her right upper limb and right side of the neck and she believed that her medical condition was static. However, she said that, overall, she was coping quite well. She could undertake normal house work, albeit with some difficulty in relation to scrubbing, vacuuming, and mopping. Professor Warfe diagnosed chronic regional pain syndrome affecting the plaintiff’s right neck region. He was “guarded” about the plaintiff’s prognosis.
In October 2014, Dr Sanders found that the plaintiff was pain-free and had good strength in relation to her right side injuries (the side primarily affected by her workers compensation injuries). However, there were symptoms in the left elbow (later identified as tendinosis), which the plaintiff said had been caused by exercises at gym sessions to which a rehabilitation provider had referred her.
On 7 November 2014, the plaintiff consulted her general practitioner, Dr Serafim, in relation to pain in her left elbow and left wrist. On examination, there was no tenderness in the cervical spine or thoracic outlet, but tenderness in the left elbow and wrist, and pain in the neck, left elbow, and wrist.
The above evidence establishes that, immediately prior to the motor vehicle accident:
(a)While she continued to experience some pain and discomfort, the plaintiff had substantially recovered from a work-related injury that had mainly affected her right upper body. The plaintiff is right hand dominant. However, she had developed tendonitis affecting her left arm, which caused pain.
(b)The plaintiff was vulnerable to intermittent exacerbation of the work-related injury.
(c)The plaintiff had not returned to strenuous leisure activities, including kickboxing and dragon boat racing, but hoped to do so. Given the plaintiff’s age and vulnerability to exacerbation of the work injury, I consider that it is unlikely that she would ever have recommitted strongly to those sports, but she may well have pursued them to some extent, and it is likely that she would have pursued alternative sporting activities such as golf. The plaintiff liked to be fit and active.
(d)The plaintiff enjoyed driving her manual Mini Cooper vehicle (which was her “pride and joy”) and taking short trips on her motorcycle, as well as walking her dogs every second day, often on bush tracks.
(e)Following recent improvement in her condition, she undertook most house work but she struggled with cleaning the shower and bath and with weeding.
(f)If the motor vehicle accident had not occurred, the plaintiff would have continued to experience a gradual improvement in her right upper body condition, but with ongoing low-level pain and intermittent exacerbation of pain associated with strenuous activity. Her left wrist and elbow condition was chronic.
The accident and the treatment following the accident
The plaintiff’s evidence
The plaintiff gave evidence that, at the time the accident, she was driving a manual vehicle. She was stationary at a stop sign with her feet firmly on the clutch and brake. Both hands were on the steering wheel. When the first defendant’s vehicle collided with the rear of the plaintiff’s vehicle, the impact pushed the plaintiff’s vehicle across the stop sign line. After the collision, the plaintiff’s vehicle was driveable, but ultimately it was “written off”.
The plaintiff said that, immediately after the accident, she was “in shock”. When she stepped from her vehicle, she felt soreness in her neck, arms, and left calf area. The pain in her lower left calf was a sharp, stabbing pain. By the following morning, the pain had increased and there was pain in the plaintiff’s right ankle as well as her left ankle.
As to the progress of injuries other than the ankle injuries, the plaintiff said that the exacerbation of her pre-existing neck, shoulder, and lower back pain resolved after two or three weeks. However, the notes of her general practitioner suggest that the period was longer, probably a couple of months.
Evidence from contemporaneous medical records concerning the ankle injuries
A few hours after the accident, the plaintiff attended her usual general practice but saw a Dr Wong as her usual general practitioner, Dr Serafim, was unavailable. She complained of increased neck pain and mild back pain. As to the plaintiff’s left leg, the doctor’s notes record:
left leg mild soreness
put left foot on clutch when mva
The plaintiff attended a prearranged appointment with Dr Sanders on 18 November 2014, the day after the accident. She reported an increase in upper body pain due to the motor vehicle accident: a sore neck and shoulders, a knot in her back, pins and needles in her feet, and pain in the left elbow and fingers. Dr Sanders opined that it was unlikely that the motor vehicle accident would impede the plaintiff’s progress in relation to her work injury. There was no notation of leg or ankle pain. However, that is not surprising because Dr Sanders was reviewing the plaintiff for the workers compensation injury to her upper body.
On 24 November 2014, the plaintiff saw her general practitioner, Dr Serafim. She reported a significant increase in neck and back symptoms following the motor vehicle accident as well as “bilateral pedal discomfort” and “Achilles region discomfort” that was sharp, with radiation to the knees. The doctor observed swelling to the inferior Achilles tendon and difficulty in weight-bearing. He noted that imaging should be considered if symptoms persisted.
When the plaintiff attended her general practitioner on 5 December 2014, there was discussion of the plaintiff’s upper body difficulties but the notes make no mention of ankle problems.
However, on 22 December 2014, Dr Serafim observed left and right Achilles tenderness with swelling inferiorly and recorded that these “new symptoms” should be monitored.
On 8 January 2015, the plaintiff complained to Dr Serafim of continuing problems with upper body, including her left elbow and hand, and persisting discomfort in the Achilles region since the motor vehicle accident. Dr Serafim referred the plaintiff to Dr Rudzeki, primarily in relation to her left elbow condition.
On 23 March 2015, the plaintiff underwent an ultrasound examination of both Achilles tendons, which disclosed bilateral Achilles tendinosis/insertional enthesopathy and a possible tear in the right Achilles tendon. Tendinosis is an abnormality of the tendons. Enthesopathy is a disorder relating to the attachment of tendons or ligaments to a bone.
During attendances on her general practitioner and other doctors in February, March, and April 2015, the plaintiff continued to complain of discomfort in the Achilles tendon region of both ankles.
On 6 May 2015, Dr Rudzki reported to Dr Serafim that the plaintiff’s forearm pain had essentially resolved and her main residual pain was bilateral heel pain.
Through May 2015, the plaintiff continued to complain to Dr Serafim of pain in the Achilles tendon region of both ankles.
On 2 June 2015, the plaintiff underwent an MRI scan of her right ankle, which disclosed tendinopathy with surrounding peritendinitis but no tear.
On 8 July 2015, a report from a rehabilitation provider stated that the plaintiff’s condition had improved as her office location had been moved, reducing the need for her to climb up and down stairs. During rehabilitation sessions in July, August, and September 2015, the plaintiff continued to complain of bilateral heel problems, exacerbated by climbing up and down stairs and, on one occasion, by undertaking a long walk on a beach and around rocks.
A rehabilitation report in September 2015 described the plaintiff’s functional capacity as walking for 10 minutes, driving for 40 minutes, and walking two or three flights of 20 stairs.
During 2015 and 2016, the plaintiff regularly attended her general practitioner and other doctors in relation to Achilles tendon problems in both ankles. In addition, she consulted doctors in relation to continuing upper body pain, particularly affecting the left elbow and wrist.
Initially, in her evidence, the plaintiff said that her right ankle had settled after three or four weeks. Later in her evidence, the plaintiff said that her right ankle had recovered after about three months and was now pain-free. However, the contemporaneous medical records indicate that the plaintiff continued to experience right ankle pain until sometime in 2016, presumably of gradually decreasing intensity.
On 2 June 2016, there was an MRI of the plaintiff’s right ankle.
In late 2016, the plaintiff attempted to wear a boot at night with considerable discomfort and without much success.
By about October 2016, medical attention was focused on the plaintiff’s left Achilles region. In October 2016, she received an injection which settled her pain. An X-ray was undertaken.
The plaintiff was referred to Dr Porter, an orthopaedic surgeon, in relation to the persistent left heel pain. He observed that her left heel showed signs of calcific insertion Achilles tendinosis and that X-rays were consistent with that diagnosis. Consequently, on 8 December 2016, Dr Porter excised the calcific tendinosis and a Haglund’s deformity in the left heel region.
The plaintiff was certified as unfit for work until mid-January 2017, at which stage she was considered fit to return to restricted duties. She wore a fracture boot for about two months, and then used crutches until about mid-February 2017. During this period, the plaintiff managed to entertain relatives who were visiting from overseas.
In March 2017, Dr Porter reported that the plaintiff was progressing well but still experienced pain with prolonged standing or walking.
In June 2017, a rehabilitation report noted that there was improved tolerance to walking and wearing hardback shoes, but intermittent sharp pain in the left heel and occasional deep heel joint pain with increased exertion, as well as increased soreness in cold weather.
In June 2019, Dr Duncan reported on ultrasound findings and a consultation concerning the plaintiff’s left ankle. He stated that the ultrasound and clinical findings demonstrated a chronic degenerative distal Achilles tendinopathy and Haglund’s deformity. He indicated that PRP therapy (two injections in conjunction with a protective boot for six weeks) may be helpful in relation to the chronic tear.
The impact of the left ankle injury on the plaintiff
I accept the plaintiff’s evidence about the ongoing difficulties that she experiences because of her left ankle condition. The plaintiff’s partner and two friends gave evidence that generally corroborated the plaintiff’s account of her limitations. Further, the evidence of Drs Eaton and Pillemer (the medico-legal experts called by the plaintiff, whose evidence I accept) was consistent with the plaintiff’s account of her disabilities (see below at [68]–[80]).
Since the accident, the plaintiff has experienced daily pain in the ankle. However, the degree of pain has been less since the December 2016 surgery. She described the current chronic pain level as 2/10, although at times in the past it has been 8 to 9/10, particularly after extensive use of stairs. These days, if the left ankle is aggravated, the pain level reaches about 7/10.
She has difficulty pointing and flexing her left foot, although she is able to rotate it.
It is painful for her to use the clutch in a manual vehicle or on a motorcycle. Consequently, after the December 2016 surgery, which was not an unqualified success, she sold her Mini Cooper and motorcycle. She now drives an automatic vehicle. She has acquired an automatic scooter and keeps a tricycle at the caravan that she maintains on the South Coast of NSW, but uses neither extensively and takes little pleasure from their use.
She experiences pain after walking for about 30 minutes on flat ground. She is very cautious when walking on uneven ground (including on beach rocks) because she fears rolling her left ankle. She takes particular care when walking downhill.
She can no longer run.
Walking up and down stairs causes pain and she endeavours to avoid stairs.
She can no longer squat. Consequently, she cannot clean the lower areas in her bathroom.
After she has sat in one position for about an hour, her ankle stiffens and she needs to mobilise it. If she is driving to her caravan on the South Coast, she needs to take a break for the purpose of mobilising her ankle. If she is the passenger, she can mobilise it while the car is moving. When the plaintiff stands up after she has been seated for a significant period, she is stiff and often pauses before walking.
The plaintiff can no longer walk her dogs because she must be very cautious when traversing uneven ground and the dogs tend to pull and place her at risk of falling.
When she has the care of her granddaughters (aged three and five years), she tries to avoid lifting them. She can no longer run and play freely with them on South Coast beaches or elsewhere.
She has surrendered any hope of returning to dragon boat racing or kickboxing. Dragon boat racing would place intolerable pressure on her heel and ankle. She no longer has the agility necessary for kickboxing and it would place her ankle at risk. I doubt that, at her age, the plaintiff would have been able to return to kickboxing or dragon boat racing with any degree of commitment, regardless of the motor vehicle accident. The plaintiff has not been able to develop her golfing skills as she cannot walk long distances and cannot walk on uneven ground.
To her credit, since the motor vehicle accident the plaintiff has qualified as a boxing judge. She cannot referee boxing, because that would require her to enter the ring and she lacks the agility that would be necessary to avoid injury as a referee.
The plaintiff and her partner have a “tinny” which they keep at their caravan on the South Coast, but it is more than six months since the plaintiff has used it. She cannot use the couple’s kayak because use would place pressure on her left foot. Although she can no longer fish from the kayak, she can fish from the bank.
Her only sporting activity is swimming, a sport about which she is not particularly enthusiastic.
As the plaintiff’s activity level has dramatically decreased, she has gained weight and has gone from a size 10 to a size 14 or so. She is demoralised by the loss of fitness and weight gain. More generally, the loss of stability and mobility has affected the plaintiff’s self-confidence.
The plaintiff is anxious about potential further injury to her left ankle and cautious about situations that may exacerbate the left ankle pain. She is also anxious when driving in peak hour traffic.
The period after the plaintiff undertook left ankle surgery was particularly difficult. She wore an uncomfortable and unsightly surgical boot for about nine weeks and then used crutches for a week or two. Over the Christmas period, her grandchildren visited her on the South Coast but she was unable to play with them on the beach and had to view them from afar.
Because the plaintiff cannot wear a shoe that rubs her left ankle, she is limited to wearing slide on shoes or those with a soft leather heel (described by Ms Walker as “grandma shoes”).
As to the future, Dr Eaton considered that the plaintiff’s left heel/ankle condition would continue indefinitely and that degenerative changes would probably result in the condition deteriorating. However, as Dr Pillemer opined that the plaintiff’s condition was more likely to improve than deteriorate, I am not satisfied that her condition is likely to deteriorate. Rather, if only because of the relief associated with the finalisation of court proceedings, I am satisfied that there is likely to be a small degree of improvement.
Medico-legal evidence
Dr Eaton
Dr Eaton, an occupational physician, gave evidence and was cross-examined. He presented as an expert witness who had given thorough consideration to the matter.
In April 2015, Dr Eaton examined the plaintiff. He noted that she weighed 75 kilograms. She presented as a pleasant, cooperative person who exhibited no “pain behaviour”. She was able to heel walk and squat without apparent difficulty. There was tenderness in both Achilles tendons. Dr Eaton diagnosed:
Whiplash associated disorder.
Reported chronic pain affected areas as described.
Probable initial soft tissue/musculoligamentous strain resulting in exacerbation pre-existing neck, shoulder, back and upper limb pain and dysfunction.
Probable exacerbation asymptomatic pre-existing left Achilles tendinosis/insertional enthesopathy.
Reported exacerbation pre-existing left elbow tendinosis.
In June 2019, Dr Eaton examined the plaintiff a second time. The plaintiff was able to heel walk on the left side with some difficulty but was unable to squat without pain. The doctor diagnosed:
Initial whiplash associated disorder and musculoligamentous strain, shoulders and back (resolved).
Chronic left heel/ankle pain and dysfunction.
Chronic left distal Achilles tendon tendinopathy and enthesopathy with marked bony irregularity, a large calcaneal spur. Chronic deep surface tear adjacent to the retrocalcaneal bursa.
In his report, Dr Eaton said that the motor vehicle accident had contributed significantly to the plaintiff’s ongoing left heel/ankle condition. While there may have been asymptomatic degenerative change prior to the accident, it had been severely aggravated by the accident. Having perused entries made by the plaintiff’s general practitioner, Dr Eaton observed that, since the accident, the plaintiff had consistently reported bilateral heel pain and bilateral Achilles tendonitis with the left side worse than the right. In evidence, Dr Eaton confirmed that, in his opinion, it was probable that the accident had exacerbated pre-existing asymptomatic left Achilles tendinosis.
Dr Eaton agreed that underlying Achilles tendinosis can become symptomatic with age, or because of a trauma or repetitive action. However, he pointed out that, usually, it was a minor condition that settled down with conservative treatment. Surgery was a last resort and, when surgery was undertaken, it was usually less complex surgery than that undertaken by Dr Porter.
Dr Eaton dismissed Associate Professor Shatwell’s opinion (see below at [82]) that cholesterol problems were implicated in the plaintiff’s Achilles tendon condition as a “red herring”, stating that any such problem was not an important component of her condition.
Dr Pillemer
Dr Pillemer, an orthopaedic surgeon, examined the plaintiff in July 2017 and July 2019.
Dr Pillemer was cross-examined. He was a forthright witness who was prepared to make concessions and who supported his opinions by reference to relatively objective evidence.
When giving evidence, Dr Pillemer helpfully explained the anatomy of the heel. The Achilles tendon extends from the calf into the back of the heel, attaching to a bone at the ankle. A Haglund’s deformity is a lump on the heel that presses on the Achilles tendon but, generally, it does not cause pain unless it is subjected to pressure from footwear or there is a separate injury to the area (either a traumatic injury or a repetitive injury). A person with a Haglund’s deformity may be predisposed to developing Achilles tendon pain because the Haglund’s deformity itself is already pressing on the tendon, making the area more susceptible to pain from an additional assault on the area.
Dr Pillemer conceded that, given the plaintiff’s pre-existing heel problems and in the context that her work required her to navigate a significant number of stairs (placing repetitive pressure on the ankle area), in the absence of trauma she could “quite easily” have suffered an Achilles tendon injury.
Nevertheless, he was convinced that the plaintiff’s ongoing Achilles tendon symptoms were caused by the motor vehicle accident. Prior to the accident she had been asymptomatic. The nature of the accident was such as to place stress on her heel, because her foot was extended on the clutch and her vehicle was pushed forward by the rear end collision. Immediately after the accident, she experienced relevant symptoms that were reported to her general practitioner that afternoon (pain in the left calf, an area that was associated with the Achilles tendon). Thereafter, she continued to complain of pain in the area. Ultimately, she came to surgery, which was relatively unusual for persons with Achilles tendon problems, and in her case it was relatively complex surgery.
Dr Pillemer stated that it would be a “remarkable” coincidence if (as proposed by Associate Professor Shatwell) the commencement of the plaintiff’s Achilles tendon symptomatology was unrelated to the accident. In his report of 4 July 2019, Dr Pillemer said:
… I do not agree with Dr Shatwell’s suggestion that Ms Pidcock would likely have developed the symptoms in the tendo-Achilles whether the accident happened or not … It is far more likely than not that Ms Pidcock would not have developed symptoms in her left calcaneus if not for the motor vehicle accident.
Dr Pillemer conceded that if the plaintiff had suffered from high cholesterol levels, that condition may (at most) have somewhat predisposed the plaintiff to developing Achilles tendon symptoms, but dismissed the proposition that high cholesterol levels were ever a significant cause of such a condition.
Associate Professor Shatwell
Associate Professor Shatwell, an orthopaedic surgeon, examined the plaintiff on behalf of the defendants. I was not impressed with his evidence. He presented as an excitable and defensive witness who was not prepared to concede any point, however reasonable. At one stage, he explained that his stance was to “defend” his opinion.
Associate Professor Shatwell doggedly maintained that the plaintiff’s left Achilles tendon problem had become symptomatic as a result of degenerative changes in the area and her very high cholesterol levels. He asserted that it was purely coincidental that Achilles tendon symptoms had commenced almost immediately after the motor vehicle accident. Further, in his opinion any ankle strain that had been caused by the motor vehicle accident would have settled within three months at most.
The causation issue
Part 4.3 of the Civil Law (Wrongs) Act 2002 (ACT) (Wrongs Act) relevantly provides:
45 General principles
(1) A decision that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
…
(3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
46 Burden of proof
In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
I am well satisfied on the balance of probabilities that the motor vehicle accident caused stress to the plaintiff’s left foot and ankle, resulting in the almost immediate appearance of symptoms in the Achilles tendon which, despite treatment including surgery, have persisted to date. In this regard, I adopt the reasoning of Dr Pillemer at [78] – [79] above. Further, the plaintiff’s right heel symptoms commenced virtually straight after the accident, at the same time as her left heel symptoms commenced, adding to the implausibility of the theory that the plaintiff’s left heel symptoms coincidently became symptomatic just after the accident.
The only evidence contradicting the proposition that the accident “caused” harm to the plaintiff’s left ankle came through Associate Professor Shatwell, an unimpressive witness whose coincidence theory defied common sense.
Impact of pre-existing condition on assessment of damages
The defendants contended that, having regard to the pre-existing degeneration in the plaintiff’s left ankle and the Haglund’s deformity, the plaintiff would have developed a left ankle disability, regardless of the accident, and that damages should be reduced accordingly.
The proper approach to the impact of a pre-existing condition on the award of damages was discussed in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 (Seltsam). At [103], Ipp JA (with whom Mason P agreed) held that the principles in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 could be summarised as follows:
(a) In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.
(b) The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.
(c) The court must form an estimate of the likelihood of the possibility of alleged future events occurring.
(d) These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.
Seltsam has been heavily cited in this and other jurisdictions, including in Lumley v Sainsbury [2017] ACTSC 40, where I observed at [54] that:
A defendant bears the evidential onus of showing that a plaintiff suffered from a pre-existing condition … Where it is shown that the plaintiff did suffer from a pre-existing condition, the court is required to evaluate possibilities in order to estimate the likelihood that alleged hypothetical past events and possible future events would have occurred … A proper assessment of damages requires judgement as to the consequences that may have flowed from the worsening of a pre-existing condition if the accident had not occurred …
[Citations omitted.]
The defendants relied upon Cressy v Miloriad [2016] ACTSC 303 in which Mossop AsJ assessed the damages suffered by a plaintiff who had a well-established pre-existing condition that would clearly have impacted upon him in any event. At [77], Mossop AsJ said:
If it was a case where the potential for the materialisation of an underlying degenerative condition was less clear, then dealing with the issue by an adjustment to the allowance for vicissitudes might be appropriate.
This is not a case where the left ankle injury would have developed (or may well have developed) regardless of the accident. The evidence of Drs Eaton and Pillemer establishes that, absent the accident, there was a risk that, at an indeterminate time in the future, the plaintiff’s underlying degenerative condition would have become symptomatic to some extent. However, such a development was a mere possibility. Further, the import of the doctors’ evidence is that it is highly unlikely that the plaintiff would have developed a condition as serious as that which flowed from the motor vehicle accident; one that did not spontaneously improve within a short period and ultimately required relatively complex surgical intervention.
The low risk that, regardless of the accident, the plaintiff would have developed minor and temporary symptoms in her left ankle is taken into consideration in the assessment of non-economic loss.
If the risk of left ankle symptoms had materialised, the impact on the plaintiff’s capacity to perform domestic chores would have been short-term and minimal. This risk warrants only a very minor reduction in the compensation that I would otherwise allow for inability to perform domestic services. Similarly, from the notional start point of 12 weeks after the motor vehicle accident, occasional exacerbations of the plaintiff’s pre-existing upper body pain would have been brief and not so disabling as to warrant any significant reduction in the compensation that I would otherwise allow under this head of damages. In order to address these minor risks, I have slightly reduced the amount that I would otherwise have allowed for future loss of capacity to perform domestic services.
Damages for non-economic loss
Applicable Principles
Damages for non-economic loss are to be assessed in accordance with s 99 of the Wrongs Act, which provides:
99 Tariffs for damages for non-economic loss
(1) In deciding damages for non-economic loss, a court may refer to earlier decisions of that or other courts for the purpose of establishing the appropriate award in the proceeding.
(2) For that purpose, the parties to the proceeding or their lawyers may bring the court’s attention to awards of damages for non-economic loss in those earlier decisions.
(3) This section does not change the rules for deciding other damages.
(4) In this section:
non-economic loss includes the following:
(a) pain and suffering;
(b) loss of amenities of life;
…
Comparable cases on non-economic loss
The Court was referred to two earlier decisions.
In Pangallo v Smith [2015] ACTSC 313, Mossop AsJ awarded $150,000 for non-economic loss, attributing $80,000 to past economic loss. When he was 63 years old, the plaintiff had sustained a number of injuries. The most significant ongoing injury was an injury to the left knee. The plaintiff required a knee replacement within a few years. The left knee injury caused pain and restricted the plaintiff’s mobility. The Court of Appeal set aside the assessment as excessive, and substituted a sum of $100,000, with $70,000 attributable to the past: Smith v Pangallo [2017] ACTCA 61 at [6] and [103].
In Jennings v George Harcourt Management Pty Ltd [2018] ACTSC 33, the plaintiff failed to establish liability. Had she done so, McWilliam AsJ would have awarded $125,000 for non-economic loss, allocating $85,000 to past non-economic loss: at [139]. Prior to the accident, the plaintiff, a 63-year-old woman, had suffered widespread osteoarthritis, including osteoarthritis in her left foot and ankle. The osteoarthritis was somewhat symptomatic. The accident caused two ankle fractures, for which the plaintiff required surgery. She was in a cast for seven weeks and had to be readmitted to hospital because of surgical complications. She developed a chronic adjustment disorder with mixed anxiety and depressed mood. Although the left ankle fractures resolved, seven years after the accident the plaintiff continued to suffer pain in the left ankle, which was assessed to be 30 per cent attributable to the fall. No issue was taken with this assessment on appeal: Jennings v George Harcourt Management Pty Ltd [2018] ACTCA 50 at [5].
Assessment
The plaintiff’s most significant disabilities are set out above at [49]–[67].
The plaintiff’s life expectancy is 32.5 years.
I will allow the sum of $95,000 for non-economic loss, apportioning 50 per cent to past non-economic loss.
Loss of capacity to perform domestic services
The plaintiff claimed damages for domestic services (in accordance with Griffiths v Kerkemeyer (1977) 139 CLR 161) under s 100 of the Wrongs Act, which provides:
100 Damages for loss of capacity to perform domestic services
(1) A person’s liability for an injury suffered by someone else because of a wrong includes liability for damages for any resulting impairment or loss of the injured person’s capacity to perform domestic services that the injured person might reasonably have been expected to perform for his or her household if the injured person had not been injured.
(2) In an action for the recovery of damages mentioned in subsection (1), it does not matter—
(a) whether the injured person performed the domestic services for the benefit of other members of the household or solely for his or her own benefit; or
(b) that the injured person was not paid to perform the services; or
(c) that the injured person has not been, and will not be, obliged to pay someone else to perform the services; or
(d) that the services have been, or are likely to be, performed (gratuitously or otherwise) by other people (whether members of the household or not).
…
At the time of the accident, the plaintiff’s ability to clean her bathroom and weed was restricted. However, her condition was gradually improving. I find that, but for the accident, it is likely that the plaintiff’s condition would have improved within a few months (say, 12 weeks) to the extent that she was capable of undertaking those tasks.
However, the plaintiff’s inability to squat now means that she cannot undertake any effective bathroom cleaning or weeding (or other tasks involving kneeling or squatting) and her partner must assume full responsibility. Dr Eaton appears to have accepted that the plaintiff has limited capacity to perform chores involving squatting and lifting. Otherwise, the plaintiff can undertake most house work duties, albeit with the assistance of a different type of vacuum cleaner and other aides. I accept that, at some point in the future, because of her increasing age, the plaintiff would probably have required domestic assistance in any event.
Following surgery, the plaintiff required a high level of domestic support for a period of some months. She spent about 9 weeks in a moon boot and was on crutches for several weeks thereafter. I will allow 16 weeks at seven hours per week (one hour per day).
Otherwise, I will allow past and future domestic assistance on the basis of two hours per week, commencing about three months (12 weeks) after the accident.
The plaintiff did not seek interest on the sum awarded for past loss of capacity to perform domestic services.
I will allow a period of future domestic assistance of 25 years; the plaintiff’s life expectancy is 32.5 years but, in her declining years, she would require assistance in any event. The resulting sum will be rounded down from $64,540 to $60,000 to address the small risk that the plaintiff’s pre-existing left ankle condition and upper body condition may, in any event, have reduced her capacity to undertake domestic chores for short periods of time in the future.
Out-of-pocket expenses
The parties agreed that, if causation was established, the plaintiff’s past out-of-pocket expenses were $21,782.75. This figure relates to about 125 consultations and includes a surgery component of approximately $6,000.
There was no claim for interest on past out-of-pocket expenses.
The plaintiff uses painkilling medication, incurring limited expenses, probably less than $100 per annum. She sees her general practitioner and specialists from time to time.
Although there is little more that medicine can offer to the plaintiff, particularly as she does not wish to pursue interventions that would involve wearing a restrictive treatment boot, in the future her condition will need to be reviewed periodically by her general practitioner and, occasionally, by specialist practitioners. She will need to obtain prescriptions for painkilling medication from her general practitioner and purchase the medication. She may require injections for pain and/or need to undergo investigations such as ultrasound testing. I will allow $7,500.
Economic loss
The plaintiff made no claim for past economic loss. She was absent for work for short periods after the accident and a longer period after the surgery to her left ankle, but she was recompensed for these periods through sick leave payments.
Recently, the plaintiff has moved to work in the accounting area of the European Union Embassy, which means that she does not have to walk up and down stairs frequently. Further, her employer has foreshadowed that a lift will be installed at the premises. Consequently, her capacity to undertake her present employment seems assured.
The plaintiff sought $10,000 for future economic loss. I will allow that small sum as a buffer against the risk that, in the next decade (i.e. prior to attaining 67 years of age) the plaintiff may need to find alternative work and may have some difficulty obtaining it due to her limited capacity to use stairs and undertake other activities that place stress on her left ankle.
Damages
I assess damages as follows:
Non-economic loss
$
95,000.00
Interest on past non-economic loss
(2% x $47,500 x 4.75 years)
$ 4,512.50 Future economic loss
$
10,000.00
Past domestic services
(16 weeks x 7 hours + 219 weeks x 2 hours = 550 hours x $35)
$ 19,250.00 Future domestic services
(2 hours x 922 (25 years on 3% tables) x $35, rounded down)
$ 60,000.00 Past out-of-pocket expenses
$
21,782.75
Future out-of-pocket expenses
$
7,500.00
Total
$
218,045.25
Orders
I make the following orders:
(1) Judgment entered for the plaintiff against the second defendant in the sum of $218,045.25.
I will hear the parties as to costs.
| I certify that the preceding one hundred sixteen [116] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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