| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : SAVVIDES -v- ASIMUS [2002] WADC 128 CORAM : JENKINS DCJ HEARD : 4-6 FEBRUARY AND 7 MARCH 2002 DELIVERED : 28 JUNE 2002 FILE NO/S : CIV 1016 of 2000 BETWEEN : MARY SAVVIDES Plaintiff
AND
ROBERT PAUL ASIMUS
Defendant
Catchwords: Damages - Assessment - Personal Injuries - Motor vehicle accident - Injuries to neck and back - Turns on own facts
Legislation: Motor Vehicle (Third Party Insurance) Act 1943, s3C
Result: Judgment for the plaintiff in the sum of $37,988.83
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Representation:
Counsel:
Plaintiff : Mr T H Offer
Defendant : Mr J R Brooksby
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : Greenland Brooksby
Case(s) referred to in judgment(s):
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Case(s) also cited:
Nil
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1 JENKINS DCJ: The plaintiff is a 48 year old receptionist who seeks damages for personal injuries suffered following a motor vehicle accident on 21 December 1998. The vehicle she was driving approached a junction with a side road. The plaintiff had right of way. Another car, driven in a negligent fashion by the defendant, proceeded from the side street onto the road the plaintiff’s vehicle was on causing the plaintiff to swerve her vehicle and collide with an oncoming vehicle (“the accident”).
2 The defendant admits he was negligent but denies that the plaintiff suffered the injuries, loss and damage alleged in the statement of claim. The re-amended defence also makes two positive assertions with respect to the plaintiff’s claim that she has suffered depression as a result of the accident. First it is alleged that if the plaintiff suffers depression (which is denied) the plaintiff has failed to mitigate her loss in that she has unreasonably refused or failed to comply with medical treatment. Alternatively it is alleged that the depression was not caused by the accident but rather was caused or alternatively contributed to by the death of the plaintiff’s father in or about November 1999. 3 The plaintiff was born on 16 March 1953. She is married and has two children born respectively in 1979 and 1984. 4 The plaintiff thinks that at the time of the accident she was travelling at about 45-50 km/h. She does not know what speed the oncoming vehicle was travelling at. The plaintiff’s recollection of the accident appeared hazy and I do not place any reliance on her estimate of her speed. Repairs to her Holden Commodore vehicle cost approximately $2500 and it was able to be driven from the scene which indicates that the collision was not severe. 5 The plaintiff suffered immediate pain in her left upper chest area. Her husband took her to see Dr Cadden the plaintiff's general medical practitioner ("GP") who diagnosed bruising over the left sternum consistent with seatbelt injury. The remainder of her examination was normal. The doctor referred the plaintiff to the local hospital. She was taken to hospital and underwent review and x-rays. She was discharged that evening with no other complaints or diagnosis having been made. 6 Following the accident the plaintiff continued to attend her work full time as an office administrator for a pest control business. However for the few days after the accident she felt "achy" and stiff all over her body. On Christmas day 1998 she could barely walk due to pain in the area between her left leg and hip. She indicated for the court that this was in
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the front of her body in the area where her leg joined her body. She also said that she suffered lower left sided back pain. She did not immediately seek medical attention because she thought that it might be the ordinary aches and pains from the accident. 7 She saw a chiropractor, Brian Havelin, on 15 January 1999. I accept his evidence, supported by contemporaneous notes, that the plaintiff told him that she had three main complaints. The first was pain in the left outer hip. The second was pain in the mid thoracic region and the third was in the cervical area. I also accept that she told him that the first pain had come on since the accident but that the second and third areas had been painful for about 2-3 months and were worse since the accident. Not only do I accept that that is what the plaintiff told Mr Havelin, I find that they were a true and accurate reflection of the sites and duration of the pain. I did not find the plaintiff’s evidence that she did not recall saying these things to Mr Havelin to be believable, especially in light of her similar responses on two other occasions during her evidence when she was confronted by contemporaneous notes that she had said certain things. They were her report of neck and upper back pain to her GP in February 1998 and her report of the causes of her problems to a doctor at Glengarry Hospital in December 2000. On all three occasions I have no reason to doubt the contemporaneous notes. 8 The plaintiff sought medical treatment on 27 January 1999. Her complaints at that time were of pain in her left thumb since the accident and pain in her left hip which was sore when walking only. On examination the GP found tenderness over the metacarpal joint and the interphalangeal joint. She found the plaintiff's neck to be "normal" but with very tender ligaments. The plaintiff’s hip had an excellent range of movement but there was pain at L5/S1 and bruising to the hip. 9 The plaintiff continued with her work, working forty hours per week. In all, the plaintiff had 3 days off work as a consequence of the accident. 10 Her father died in November 1999 and she travelled to Cyprus for his funeral. On her return to Perth, on 5 January 2000 the plaintiff lost her job due to her employer’s financial difficulties. In early March 2000 she was diagnosed by her GP as suffering from depression. She was prescribed antidepressants. Soon thereafter the plaintiff applied for and was given the job with her present employer, Tuscany Bridal Pty Ltd. She has always been employed fulltime in this business as administrator and sales assistant. She originally earned $25,000 but this was increased to $27,000 after a year.
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11 Further findings will be made under the heads of damage as these have been presented to me. During the trial I heard evidence from seven medical practitioners each of whom are credible specialists in their fields. It is difficult to find any consistency between them in terms of the nature, extent or cause of the plaintiff’s complaints. This necessarily complicates the fact finding obligation. Where I have not been able to come to a view that the opinion of a doctor should be preferred over another or others I accept on the balance of probabilities the opinion that is accepted by most of the doctors. Thus on some issues I have preferred the view of one doctor and on another I may have rejected that same doctor's view.
General damages – Non-pecuniary loss 12 The complainant gave evidence that prior to the accident she did not recall having any neck or back pain. I do not accept that the plaintiff did not suffer such pain. On the basis of the 1998 entry in the GP's notes as well as the history she gave to Mr Havelin on 15 January 1999 that she was suffering from mid thoracic and cervical pain for some 2-3months which had become worse since the accident I find that she did have pain in her upper back and neck as far back as February 1998 and that it had been present for a couple of months prior to the accident. An MRI scan in October 2000 found that the plaintiff had degenerative changes at C6/C7 and C7/T1. In my opinion this pathology would explain the symptoms she was having prior to the accident. 13 In coming to this opinion I have taken into account the view of Mr Brash, an orthopaedic surgeon called by the defendant that such changes are commonly seen in scans of the bones of people the plaintiff’s age and that the research shows that they are a very poor indicator of the cause of pain. However the fact is that the plaintiff reported that she had this pain prior to the accident. Whilst I accept that the single report of pain in February 1998 could well be an isolated episode of muscle strain or similar, I find that it, accompanied by the more prolonged period of pain prior to the accident, cannot be so explained. On the balance of probabilities I find that these changes had first become symptomatic by February 1998 14 I accept that immediately after the accident the plaintiff suffered a bruised sternum, causing her immediate pain. I also accept that she suffered soft tissue injuries to other parts of her body which in turn gave her aches and pains over Christmas 1998. The plaintiff said that the worst of this pain was at the front and top of her left leg. I accept Dr Ker’s
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evidence that this would have been caused by the plaintiff’s seatbelt and it seems that this pain resolved over a reasonable time. 15 I also accept that the motor vehicle accident exacerbated the pain that she was already experiencing in her upper back and neck. 16 I note that on the Accident Report Form that the plaintiff completed on 28 December 1998, the only injuries she stated she received in the accident were "chest pains". This is despite the fact that she said in evidence that by Christmas Day she could barely walk due to pain in her upper leg and low back and that although she woke up on Boxing Day without pain the pain had returned by the afternoon. It seems that the pain she felt in the week between the accident and 28 December 1998 could not have been so bad that it warranted her attributing the term "injury" to it when she completed the Accident Report Form. 17 The defendant’s case, based on the evidence of Mr Brash an orthopaedic surgeon, is that the plaintiff's delayed response to injury, that is that the plaintiff complained of pain in the sternum immediately after the accident and did not complain of other pain until Christmas at the earliest, was not in accordance with science, logic or reason. Against this evidence I must consider the other evidence including that of Dr Ker, a rehabilitation physician, Dr Edelman, a rheumatologist, Mr Malone, a neurosurgeon and Dr Cadden, an experienced general medical practitioner. These practitioners accept that pain such as the plaintiff reported could manifest itself some time after trauma, certainly within the time frame in this case. The weight of expert opinion is against Mr Brash in this respect. 18 The plaintiff's case is that her low back and hip pain and upper back and neck pain has continued and if anything has worsened over the years since the accident. This is to the extent that at the time of trial she alleges that her condition had not improved since January 1999.
Upper neck and back pain 19 The plaintiff complains of upper neck and back pain which in turn causes headaches and pain across her shoulders and down both arms. She says the pains came on after the accident and continue to date. An MRI scan done in 2000 showed a small disc protrusion at C6/C7 and C7/T1 and a posterior disc protrusion at T12/L1. There was some local osteophyte formation as a consequence of these abnormalities at C6/C7
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and C7/T1. These abnormalities are often seen in people of the plaintiff’s age and can be symptomatic or asymptomatic. 20 Mr Ker, a consultant physician in rehabilitation medicine, gave evidence for the plaintiff. His opinion was that the plaintiff’s present upper back and neck pain were consistent with the pathology at C6/C7 and C7/T1. There was no suggestion from him that the abnormality at T12/L1 could be causing this pain. He found no tenderness at this site. His view was that on the basis of the plaintiff’s history given to him this pain was resolving when he saw her on 3 July 2001, but was still present on 8 December 2001. What residual pain there was was a consequence of the underlying pathology and this pathology was not accident caused because there was associated osteophyte formation which was evidence of longstanding degeneration. 21 Dr Edelman, a rheumatologist, called by the plaintiff was of the view that the fact that all the plaintiff’s pains remained over 2.5 years after the accident and the fact that she reported pain on his second examination which was not consistent with her report of pain on his first examination indicated that whatever her problems they were not accident caused. 22 Doctor Cadden, her GP, was of the view that all the plaintiff’s pain is accident related. 23 Mr Malone, a neurosurgeon, gave evidence that in his view the plaintiff’s upper back problems are part of a pain syndrome which has been caused by the accident. This pain syndrome in Mr Malone’s view is caused by the underlying pathology at T12/L1 and is not related to any particular nerve path. That is the reason why the pain is widespread. In his report of 2 November 2000 he notes that the plaintiff had tenderness over the paraspinal muscles particularly on the left side from the thoraco-lumbo junction down to the lumbo-sacral junction. The history he took also related to pain in this area. There is no reference to upper back or neck tenderness or complaints of pain. He reviewed the plaintiff on 16 November 2000 and 12 April 2001. Neither of the reports of those reviews mentions upper back and neck pain. Somewhat surprisingly his report of 19 December 2001 referring to a review of the same date states:
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24 In his report of 4 January 2002 Mr Malone makes the statement that the plaintiff’s symptoms remain “somewhat similar to initial review. She continues to experience on going pain syndrome though it is somewhat more prominent in the upper spine…”
25 Mr Brash on the other hand does not believe that the plaintiff’s upper back and neck pain is related to any of the pathology in the plaintiff’s back or the accident. His opinion is that the abnormalities seen in the MRI scan are consistent with age and genetically caused degeneration. He says that the research indicates that such changes are very poor indicators of symptoms. He cited research which showed that workers who did not have such changes had more complaints of back pain than those who did. Further, he had not found that the plaintiff was tender over the affected spinous processes in any event. His view is that if the plaintiff had suffered soft tissue injury as a consequence of the accident then it would have resolved in approximately 6 weeks and would not be causing problems after that time. 26 Mr Qintner, a rheumatologist, reported that when he saw the plaintiff on 18 April 2001 she reported widespread pain in her neck and upper back, both shoulders and her forearms extending to the wrists and hands. He found mechanical allodynia related to the radial and posterior interosseous nerve trunks in either arm and mildly painful cervical movements in extension and in forward flexion. He describes her pain as “mild refractory bilateral cervicobrachial pain syndrome of neuropathic pathogenesis”. Contrary to Mr Malone’s view, he says that the pain does follow known nerve trunks. The view in his report is that the upper back and neck pain she complained of in April 2001 could not be attributed to the accident. This it seems is because of the delay between the date and time of the accident and the onset of the current pain. In cross examination he agreed that if the pain occurred earlier that he believed when he completed his report then the pain may be related to the accident. 27 The above review indicates the wide divergence of medical opinion in relation to the plaintiff’s upper back and neck pain. However only two practitioners are firm in their view that the alleged pain is accident related. They are Dr Cadden and Mr Malone. I am not prepared to accept Dr Cadden’s view in preference to that of a number of specialists who hold a contrary view. 28 I do not accept Mr Malone’s view on this issue. Most particularly I cannot see how he can claim that the plaintiff’s complaints have remained even “somewhat similar” since his initial review when the first three
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reports he wrote regarding the plaintiff neither reported complaints of pain, nor tenderness, in the region of the upper back and neck. Whereas his last two reports stress this area and her arms as being the major area of pain. In evidence he expressed himself to be of the view that the underlying spinal pathology in T12/L1 could manifest itself in such widespread pain. He was the only practitioner to express himself in these terms. Although I acknowledge that he is the only Neurosurgeon amongst the medical witnesses, in light of the evidence of Mr Brash, Dr Ker and Dr Edelman on this issue I do not accept that evidence in relation to this plaintiff. 29 I also note Mr Malone's view that the plaintiff’s pain does not run along specific nerve paths is not supported by Mr Qintner, the rheumatologist. This appears to indicate that the plaintiff’s complaints are so diffuse that they defy attempts by highly trained experts to locate their source and paths. 30 Even if I accept the plaintiff’s evidence of the extent of her pain in her upper back and neck, I do not accept that her current pain state in this area is as a result of the accident as opposed to the natural progression of her previous upper back and neck problem. However I accept that the accident caused soft tissue injuries and an increase in the pain in this area but that this had substantially resolved by early July 2001.
Lower back pain 31 The plaintiff complains of lower back pain moving into her hips and down her legs at times. She says that this pain came on after the accident and continues to date. 32 Dr Ker considers that the disc pathology at T12/L1 is too high to explain the pain that the plaintiff has complained of in her lower back and that this is therefore a soft tissue injury. Dr Ker is of the view that the lower back pain is still the result of the accident. He acknowledges that there was a degree of inconsistency in the plaintiff’s complaints to him about her pain. In particular on the first examination she was tender over L3, L4 and L5, whereas on his second examination of the plaintiff she was tender over L5/S1. However he did not find in her any signs of an effort to amplify or exaggerate her problems. 33 Dr Edelman does not believe that the pathology at T12/L1 would explain the back pain. His view is that the plaintiff had soft tissue injuries and that soft tissue injuries usually resolve in 2–2.5 years. He said that on
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his second examination of the plaintiff on 30 April 2001 she was quite tender to light palpation of her low back. This was not evident during his first examination on 1 October 1999. As a consequence of this unexplained deterioration 2.5 years after the accident he concluded that her complaints as of April 2001 and after are not accident caused. 34 As stated earlier Dr Cadden was of the view that all the plaintiff’s relevant complaints since the date of the accident were caused by the accident. I note that when the plaintiff saw Dr Cadden on 27 January 1999 she found pain over L5/S1 but no pain over T12/L1. 35 Mr Malone’s evidence I have already dealt with. As I have explained he did not differentiate between the pain in the different areas of the back. Although I note that the lower back pain he reported on was from the thoraco-lumbo junction down to the lumbo-sacral junction. 36 The defendant’s case based on Mr Brash’s evidence is that soft tissue injuries usually resolve over a six to eight week period. Mr Brash pointed out, that pain is a symptom rather than a diagnosis and if the plaintiff had been suffering a soft tissue injury when reviewed by him initially on 9 November 1999, he would have expected a decreased range of motion and spinal spasm. He did not see these signs. 37 Mr Qintner’s view is that the plaintiff is suffering from a "non-specific low back pain referred into her hip regions possibly as a result of painful pathology involving the T12/L1 intervertebral disc". However for the reasons given above in relation to the upper back and neck pain he did not think that the lower back pain was causally related to the accident. This opinion may not have the same force in light of the plaintiff’s evidence that she suffered low back pain no more than 4 days after the accident. However I am unwilling to turn his negative view of causation into a positive view that the pain is caused by the accident. Reasons for this include that he was not given an opportunity to see and consider all the evidence relating to when the plaintiff first experienced low back pain. 38 I have found that the most reliable source of the plaintiff's complaints in the first month after the accident are the documents completed when she saw Mr Havelin on 15 January 1999. He noted on examination that the plaintiff was tender over L5/S1. However she did not report pain in this area to him. Neither did she draw it when she completed a pain drawing for him. 39 Again, it can be seen from the above review of the medical opinions that there are widely differing views about the alleged low back pain.
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40 However in the case of pain in this area Mr Malone and Dr Cadden are joined by Dr Ker in the view that the low back pain is accident related. For the reasons given earlier I do not place weight on Mr Malone’s opinion or Dr Cadden’s view when it is contrary to the weight of specialist opinion. However Dr Ker impressed me as a witness. He made concessions when it appeared appropriate to do so and gave a rational account of the reasons for his views. However I note that his opinion that the low back pain is genuine and accident caused is qualified by his own opinion about inconsistencies in the plaintiff's complaints.
41 On the balance of probabilities I accept that the plaintiff suffered soft tissue injury to her lower back as a consequence of the accident and that this did not resolve within the usual time frame. 42 The next issue to determine is whether the soft tissue injury to the lower back has resolved and if so, when? 43 This is difficult to determine as the plaintiff has continued to complain of such pain since the accident to trial. However given the expert opinion on this issue I am not prepared to accept that the plaintiff's complaints of pain in this area over 3 years after the accident are accident related. 44 Mr Grozotis, the plaintiff’s employer up to January 2000 gave evidence. He said he saw the plaintiff nearly everyday. He said that after the accident the plaintiff appeared jolted and shocked., He said that she said she was in pain for about a month after the accident but after that he did not notice that she was in pain and neither did she complain about being in pain. 45 In light of the evidence of the medical practitioner’s who accept that the plaintiff’s pain is accident related and Dr Edelman’s evidence about the time soft tissue injuries can take to resolve I accept that the plaintiff continued to have pain in the lower back as a result of the accident until early July 2001 but that this pain would have gradually decreased in severity over the period from the date of the accident until this time. I find that the worst time for her was the 6 weeks after the accident. This coincides with Mr Brash’s view of the time it takes soft tissue injuries to resolve and also the time that Mr Grozotis noticed her pain. It is not necessary for me to make a finding as to the cause of her current complaints in this area. 46 I find that there is exaggeration in the plaintiff's ongoing complaint of symptoms. It is a matter that the court should take into account but I do
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not find her exaggeration so extensive as to falsify her testimony. I accept Mr Brash’s opinion that the process of legal/medical assessment associated with a plaintiff who pursues a personal injuries claim to trial encourages even honest and genuine plaintiffs to prolong and/or exaggerate symptoms. I do accept the plaintiff is a witness who came to court doing her best to tell the truth, although emphasizing her symptoms to be sure the court understands what she feels she has suffered as a consequence of the accident.
Depression 47 The plaintiff claims to have developed a depressive illness as a consequence of the accident. The defendant denies this and says further that if she has it was caused by or contributed to by the death of the plaintiff’s father in November 1999. The defendant also pleads that if she does suffer accident related depression she failed to mitigate her loss in that she has unreasonably refused or failed to comply with medical treatment related thereto. 48 The plaintiff had no history of depression prior to the accident. 49 In mid June 1995 her aged and substantially blind father was living with her. He was unhappy because he was in a strange environment. The plaintiff found him demanding and his presence in the house to be stressful. The plaintiff consulted Dr Cadden in mid 1995 and her notes report that they had a "long talk re father and self esteem". The notes said "Needs more time to herself". No drugs were prescribed. Shortly thereafter her father returned to live in Cyprus. The plaintiff acknowledges that whilst her father lived with her she felt stressed but says that this resolved when he left. 50 In 1998 she visited her father in Cyprus. He was blind, very frail and dementing. However she said that he was happy that she and her sister were there. She said they "had a really good visit". She said she knew when she left him that she wasn't going to see him again. She had mixed feelings when she left. She said she was sad to see him the way he was, but she was happy that she'd visited him. 51 In respect to the development of depression after the accident the plaintiff gave evidence that by May, June 1999 she had given up most of her recreational pursuits as a result of the accident caused pain and she felt like two thirds of her life was gone. She said it made her feel suddenly old and she felt like she was losing control of all the good things that she
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had in her life. She said she was very frightened. She said she also felt guilty, incompetent and angry for not being able to perform her role as homemaker. 52 The plaintiff’s father died in about October-November 1999 and the plaintiff and her siblings reunited in Cyprus at his funeral. Upon her return in the first week of December she claims to have suffered increased pain which she attributed to her accident caused injuries being exacerbated by travel. 53 In January of 2000 she was retrenched because the firm she was working for was suffering financial problems. 54 She said that her accident related problems were making her depressed at this time. She said she was also was also getting depressed with the idea that she had to go back to work, without knowing what sort of work to go into, given that with her accident related pain she did not feel that she was coping with the reception work she had been doing. Consequently she said that she was reluctant to look for a job. She said she became very depressed, moody and snappy at home. She closed herself indoors and wouldn't go anywhere or have any visitors. She also had a panic attack. She went to see Dr Cadden at the beginning of March 2000 and she put her on an antidepressant. Shortly after that she was feeling better and was about looking for work. She soon obtained her current employment. 55 In around August 2000 she started to reduce the dosage of antidepressant and stopped taking them altogether by November 2000. She did this without telling Dr Cadden. Her reason being that she did not like taking antidepressant medication. 56 She was admitted to hospital for a short time in December 2000 because Dr Cadden did not feel that she was coping with her back pain. On 6 December 2000 Dr Cadden noted that the plaintiff would not take the antidepressant although she thought she needed to. 57 At the beginning of May 2001 the plaintiff saw Dr Tannenbaum, a psychiatrist, for a medico-legal review. He noted that on the basis of the depression and anxiety stress questionnaire the plaintiff presented with mild symptoms of depression and anxiety which did not conform with clinical impression which was of a much more significant moderate level of major depression. His view was that she needed to take an antidepressant.
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58 Around the same time the plaintiff apparently saw a clinical psychologist, Ms Bowyer for pain management and help with the depression. However she stopped seeing her around the end of June 2001, despite being urged by Dr Quintner to continue treatment. Her excuse was that at that time she was out of the country for three weeks celebrating her husband’s 50th birthday with his sister in Los Angeles. The fact that she organized this visit as a surprise for her husband militates against a finding that she was disabled either by pain or depression at this time. Indeed the plaintiff gave evidence that at that time she was back on antidepressants and she thought she was feeling better.
59 The plaintiff saw Dr Tannenbaum again on 19 December 2001. In a somewhat contradictory fashion he says in his report of that consultation that the plaintiff "has improved a little with respect to her depression" but then goes on to say that the monitoring questionnaires show that she is "still in the moderate to severe range of major depression…". This is despite the fact that in his previous report he had noted that the questionnaires showed that the plaintiff only had "mild symptoms of depression and anxiety". It also seems inconsistent with the original clinical impression which was of a "significant moderate level of major depression". I do not understand how six months later he could say that she had improved a little but was "still" in the moderate to severe range of major depression. His earlier report did not place her in that category at all. These contradictions make it very difficult for me to rely upon his evidence as proof of any particular degree of accident related depression. 60 He also says that the plaintiff's treatment for depression was complicated by her intolerance of a number of medications. Neither the plaintiff nor her GP gave evidence of such intolerance as being a reason for not taking the antidepressant or that she had tried any antidepressant other than Cipramil for treatment of the alleged accident caused depression. The plaintiff said she ceased taking the antidepressants in 2000 because she thought they were a "bad type of medication" to take. 61 Dr Tannenbaum noted the tolerant work environment in which she found herself and said her adjustment was "marginal". The plaintiff's and her employer's evidence in this regard, the longevity of the employment and the fact that there is no evidence before me to suggest the plaintiff intends to voluntarily stop work or that her employer intends to retrench her leads me to the view that that employment is likely to continue in the medium term.
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62 Dr Tannenbaum prepared a report dated 15 February 2002 to the effect that the plaintiff's father's death was not a major issue in respect to the development of her depression and confirmed his view that the accident caused pain and disability was the cause of the depression. His view is that the plaintiff had already grieved in anticipation of the death and the family reunion a the time of his death was more of a celebration of his life and may well have lifted her spirits for a time.
63 At the request of the defendant the plaintiff saw Dr Mustac, a psychiatrist, on 26 November 2001 for a medico-legal opinion. Dr Mustac gave evidence that in his view the plaintiff developed a depressive illness a few weeks after the motor vehicle accident. His note was that she said it started when she developed pain in her thumbs. The pain apparently being the straw that broke the camel's back. He said at the time that he saw her there was only evidence of mild severity of depression. There were four reasons for that finding. First she was working full-time in a bridal store and in a sales position. Thus she must be able to present well to potential customers and to maintain a level of sales that was satisfactory to her employer. Secondly she demonstrated a great deal of pride in her achievements. He said individuals who are depressed don't demonstrate pride. Instead they tend to be overly self-critical and self-demeaning, as she presented in 1995 to Dr Cadden. Thirdly, the reason that she had left her employment with Mr Grozotis in the pest control business, was that her position was made redundant because the business had declined rather than because of any debilitating depression. Fourthly, she was able to give a very good history of herself. She presented in a competent manner. She was not a person who was excessively intimidated or anxious. I have set these reasons out in full as I substantially agree with them. I prefer Dr Mustac's reasoning to that of Dr Tannenbaum, in that it accords with my assessment of the plaintiff as she gave evidence of her history. Further, I did not find the same inconsistencies in Dr Mustac's evidence that I found in Dr Tannenbaum’s evidence and reports. 64 As to the effect of her ceasing her medication Dr Mustac said that if a person goes off their antidepressant medication either early or while they are still symptomatic it's very likely they are going to have a relapse of their depression. He acknowledged that the plaintiff may have felt that her depression at the time she ceased her medication had improved sufficiently, and there was no need to continue with her medication. 65 I am loathe to penalize the plaintiff for ceasing her anti depressant medication because she felt she had recovered. However there is
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evidence that on 6 December 2000 Dr Cadden told her that she needed to take an antidepressant, yet she did not recommence treatment until mid 2001. During this period she failed to mitigate her damage. However this is not a significant period in terms of the assessment of her damages. This is particularly as when she recommenced the antidepressant her depression again improved. I also note that since mid 2001she has failed to continue treatment with Ms Bowyer, the psychologist. She acknowledged that her decision not to see Ms Bowyer was related to her being back on antidepressants and feeling better. 66 As to the role of the death of her father in the development of her depression the most Dr Mustac could say is that theoretically the death of a close relative is a known trigger for the development of depression. However he was unaware of the plaintiff’s close relationship with her father and thus when he completed his report he did not consider his death as a likely causative factor of her depression. In his evidence he said if he had known of it he would have wanted to investigate the issue further with her. He never got the chance. Thus as Dr Tannenbaum rejects it as a significant cause of her depression, there is insufficient expert evidence to enable me to conclude that it was a significant cause of her depression. 67 As a matter of common sense the death of her father, the loss of her job and her pre-existing upper back and neck problem must have contributed to a large extent to the development of the plaintiff's depression. These are life changing events. However on the balance of probabilities I accept that the accident related injuries were also a substantial cause of her development of depression some time in 1999 which was diagnosed in early 2000. I find that appropriate medication quickly relieved the symptoms but that her condition worsened from August 2000 when she stopped taking the medication. From early December 2000 the plaintiff must bear the consequences of this action as she was told that she needed to continue to take the medication. From around June 2001 she recommenced taking the antidepressant medication and I find that as a consequence her accident related depression from then on was of mild severity. In assessing damages for this depression I also take into account my finding that her accident related injuries and pain have now abated.
Thumbs and wrists 68 The plaintiff's other major complaint of pain is in her thumbs. The plaintiff gave evidence that after the accident she developed pain in her left thumb. She first consulted her GP about this pain on 27 January
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1999. She was prescribed an anti-inflammatory and referred for physiotherapy. In June 1999 she reported to her GP that her right thumb was painful also. 69 A bone scan revealed that she had an inflammatory arthropathy in her wrists and thumbs. Dr Ker gave evidence that this was a separate pathology and any link between the accident and that pain would be modest. Dr Edelman agreed and said that the plaintiff had some localised osteoarthritis in those thumb joints. I accept the evidence of Dr Ker for the reasons given earlier. I accept that the plaintiff may have had some pain in these areas for approximately 6 weeks after the accident due to soft tissue injuries but that after that any pain to these areas was as a result of a separate pathology.
Conclusion 70 I accept that over the two and half years of accident related pain her ability to take responsibility for household tasks was affected. Before the accident the plaintiff was a keen participant in community ethnic events. She produced and presented a weekly community ethnic radio program, organised an annual poetry competition and published the fruits of that competition. She also enjoyed Greek Cypriot social events in Perth which included social dancing. Since May 1999 she has given up those activities. Although the plaintiff claims that that has been entirely the result of pain caused by the accident I do not believe that I should assess her damages on the basis that the accident was the sole cause of her relinquishing those jobs. This is because of the findings I have made with respect to the causes of her pain and the duration of her accident caused neck and back pain. 71 As the plaintiff's injuries arose out of a motor vehicle accident which occurred after 1 July 1993 the provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act") governs the amount of damages to be awarded for non-pecuniary loss. Non-pecuniary loss is defined in the Act to include pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental. That is all those matters the subject of an award of general damages. 72 The Act requires me to determine the amount of general damages as a proportion of the maximum amount that may be awarded. The maximum that may be awarded under the Act as from 1 July 2001 is set at
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a figure of $232,000. The maximum can only be awarded in the most extreme case. 73 Compared to what may be regarded as the most extreme case, that is quadriplegia, I find that the plaintiff's accident related injuries, pain and disabilities to be compensated for under an award of general damages puts her at 15 per cent of a most extreme case. This reflects the length of time that her accident related soft tissue injuries lasted, the development of accident related depression and the effect of these injuries on her enjoyment of life. 74 Performing the calculation as I am required to do under the Act using $232,000 as amount A, $11,500 as amount B and $35,000 as amount C, I award $23,300.00 for non-pecuniary loss.
Past economic loss 75 The first part of the plaintiff's claim under this head of damages is for three days income being $198.84 net. In evidence the plaintiff said she took a day off in February 1999 when Dr Cadden sent her to get some bone scans done. These would have been of her thumbs. She said she also remembered taking time off being 2 days in April because her headaches were excruciating and she couldn't even open her eyes. She said she was paid sick leave for those days but that when she subsequently became ill with pneumonia in August of 1999 she did not get paid for three of the days she had off with that illness because she did not have enough sick days left, having taken the days earlier in the year for accident related problems as I have just described. 76 Mr Grozotis, the plaintiff's employer at the time, said that this was false. He said that he had paid her for everything by which I understood him to mean that he had paid her for all of her days off work for alleged sickness. However, he acknowledged that the plaintiff was responsible for recording sick leave and that she would "know". By that I understood him to mean that she would know what days she had or had not been paid for. 77 Without in any way criticising Mr Grozotis who I accept as an honest witness who was genuinely trying to recall the truth about this matter, on the balance of probabilities I accept that the plaintiff suffered this loss and it is accident related.
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78 The next claim in respect of past loss of earnings is in relation to the period between 5 January 2000 and 9 March 2000 when the plaintiff was unemployed. Mr Grozotis had terminated her employment on 5 January because of his business' financial difficulties. The termination had nothing to do with the plaintiff's accident related injuries. The plaintiff's case is that at this time she was suffering from accident related depression and that as a consequence she felt unable to seek alternative employment for a period of time. As I have found she was prescribed antidepressant medication in early 2000 and the symptoms of her depression quickly improved, she started to look for employment and had found such employment by 9 March 2000.
79 Although I have found that her depression at this time was accident related I am not satisfied that this depression was the sole cause of her failure to obtain employment. The plaintiff concedes that some time must be allowed to obtain alternative employment even if the depression had not existed at this time. The plaintiff submits that a global assessment of $1,500, being a little more than 50 per cent of the total loss of earnings over this period would be appropriate. 80 The plaintiff was prescribed antidepressants for the first time on 3 March 2000 and that appears to be the first occasion upon which Dr Cadden noticed the depression. Dr Cadden's note at that time was that the plaintiff was "really very depressed". I accept that this depression would have taken some time to develop. I agree with the plaintiff's submission that it is reasonable to allow a global assessment of $1,500 in relation to the plaintiff's past loss of earnings for this period of time. 81 The next and last claim for past loss of earnings is for the difference between what the plaintiff actually earned and what she would have earned in her employment with Tuscany Bridal Pty Ltd except for her injuries. The plaintiff claims the sum of approximately $200 gross or $132 net per week being the difference between what she was paid in her employment with the Tuscany Bridal Pty Ltd and what she would have been paid had she been able to carry out her duties in a full and unrestricted fashion. The plaintiff's claim is that if it was not for the accident she would have been able to carry out her duties in such a full and unrestricted fashion. This amount is claimed from 3 June 2000 being the time at which her employer had agreed to review her wages. 82 The plaintiff gave evidence that there were various duties of her employment which were difficult to perform because of her pains. These are pains which she attributed to the accident. For example in relation to
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the sales duties she said that standing up, walking around carrying heavy gowns, bending down to get the prospective brides petticoats done and looking after the customer gave her sleepless nights because of her pains. In relation to stock delivery she said that the unpacking of gowns, checking them and hanging them up also caused her problems. She said that she had to take pain killers every afternoon because of her headaches and her back would be sore. 83 The plaintiff said that she started her employment being paid $25,000 per year. She was told that her wages would be reviewed within three months. This did not occur. Twelve months later she asked for more money and she was told that they could not give her what she should be getting paid but they increased her wages to $27,000 per year. 84 She gave evidence relating to her hospitalisation in December of 2000. She said that her back was particularly bad from September through to November and she was not coping. She said that she had to take some time off because she was actually vomiting with too much pain. She said that it was as a consequence of her pain increasing at work that she had to be hospitalised. 85 However, the plaintiff continues to be employed by the Tuscany Bridal Pty Ltd and there was no suggestion in her evidence that she intends to stop that employment. 86 Michelle Elizabeth Harris gave evidence for the plaintiff. Ms Harris is a director of Tuscany Bridal Pty Ltd which is the plaintiff's current employer. Ms Harris confirmed the plaintiff's evidence regarding her duties. She said that she notices the plaintiff's pain and consequently she has to consider it in terms of the various duties that she gives to the plaintiff. Ms Harris gave evidence that prior to the plaintiff being employed she had another employee doing the same job. She said that this employee was paid $35,000 per year. She said that the discrepancy between the plaintiff's wages and this amount was because of the time the plaintiff had to take off and the constant help she has had to have from other staff to perform her duties. She gave evidence that the plaintiff frequently had to leave early during the day because she was in pain. 87 Ms Harris impressed me as a witness of truth. I accept that if the plaintiff did not need help to do her job and extra time off then she would be paid $35,000 per year as opposed to $27,000 per year. That leaves the question as to whether her failure to perform her job to its fullest extent and in an unrestricted manner is caused by any accident related injuries?
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The plaintiff's previous work history is impressive and does not indicate that the plaintiff is naturally a malingerer or lazy. In the light of my earlier findings regarding the nature and extent of the plaintiff's accident related injuries I accept that her accident related pain and depression was a significant cause of her inability to perform her full duties up until 30 June 2001. Consequently I assess past economic loss from the period 3 June 2000 to 30 June 2001 at the rate of $132 per week. This produces a calculation of 56 weeks x $132 = $7,392. 88 I would also allow for superannuation in relation to past loss. This amount is calculated by taking her gross weekly wage of $200 and multiplying it by the number of weeks, which is 56. The resulting figure is multiplied by 9 per cent to get the gross superannuation and this figure is then multiplied by 70 per cent in order to reduce it in line with the decision in Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192. The resultant figure is $705.60.
Past special damages 89 The parties have agreed that there are outstanding past special damages of $287.39. I will allow these.
Interest 90 I would allow interest on past losses at the rate of 3 per cent per annum for 2 years which results in a figure of $605.
Future economic loss 91 The plaintiff claims future economic loss on the same basis upon which past economic loss has been calculated. It follows from the findings I have made with respect to the nature and extent of her accident related injuries and disabilities that she is not entitled to such an award. As a consequence of these findings my view is that any pain and suffering she currently has is not as a result of the accident. Further, there is no likelihood of the soft tissue injuries that she received in the accident causing her pain and suffering in the future. 92 With respect to her depression, I concede that once depression has developed it may not resolve immediately upon the passing of the accident related pain disabilities which were a contributing cause of the depression. There is thus the reasonable chance that the mild depression
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which she currently suffers is still accident related. The evidence is that it is not the depression which currently causes her loss of earnings. However I concede that it is possible that her accident related depression may cause a slight diminution of her earning capacity that may be productive of some small financial loss in the future. An example may be if she requires a day or two off work because of the symptoms of her depression. I think it is therefore appropriate that I allow a modest global sum of $2,500 for future loss of earning capacity.
Future special damages 93 The plaintiff submits that she will require ongoing antidepressant medication, over the counter pain relief, counselling by either a general practitioner or a psychologist and periodic physiotherapy. She also claims for travel costs associated with the treatment. The plaintiff acknowledges that it is difficult to calculate her future special damages with any precision and seeks an award in the sum of $3,500. It is clear from my findings that the plaintiff is not entitled to damages in relation to the future purchase of over the counter pain relief, physiotherapy or consultations with a medical practitioner for physical disabilities. However as I have acknowledged her current level of depression and depression in the future may be accident related. Thus, I think it is appropriate that I allow a figure in the sum of $1,500 for future special damages which would include antidepressant medication, counselling and travel costs associated with such counselling.
Conclusion 94 I would assess damages in the following amounts.
Non-pecuniary loss $23,300.00 Past economic loss $10,083.83 Interest on past economic loss $605.00 Future economic loss $2,500.00 Future special damages $1,500.00 Total $37,988.83
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