Singh v Cooper
[2015] ACTSC 243
•21 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Singh v Cooper & Anor |
Citation: | [2015] ACTSC 243 |
Hearing Dates: | 30, 31 March and 1 April 2015 |
DecisionDate: | 21 August 2015 |
Before: | Mossop AsJ |
Decision: | See [104] |
Category: | Principal Judgment |
Catchwords: | PERSONAL INJURY – Motor vehicle accident – assessment of damages – causation of economic loss – difficulties in isolating effects of injury from effects of other factors – limitations in medical evidence as basis for determination of causation and quantum – damages awarded on basis of buffer for economic loss |
Parties: | Aneeta Kayla Singh (Plaintiff) Michelle Cooper (First Defendant) Insurance Australia Limited trading as NRMA Insurance (Second Defendant) |
Representation: | Counsel Mr A Black SC and Mr D Crowe (Plaintiff) Mr R Crowe SC (First and Second Defendants) |
| Solicitors United Legal (Plaintiff) Sparke Helmore Lawyers (First and Second Defendants) | |
File Number: | SC 566 of 2014 |
This case involves an assessment of damages in relation to a motor vehicle accident that occurred on 25 March 2013. The principal areas of dispute related to the award of damages for past and future economic loss.
Facts
The plaintiff was born in New Zealand in a town called Te Awamutu. She is now 39 years old. In 1980 she and her family moved to Fiji. She has two brothers and a sister. Her father had a PhD in biochemistry but was a successful businessman pursuing various business interests. He was also a parliamentarian in Fiji up until the 1987 coup. Following the coup the plaintiff’s family moved back to New Zealand from Fiji. In February 1990 the plaintiff’s father died unexpectedly. This event has had a significant effect on the plaintiff’s mental health.
The plaintiff finished school in 1993 and commenced a Diploma of Health Science at Auckland University of Technology. This was a qualification which would have allowed her to become a nurse. While she performed well academically she left the course during the clinical training. After leaving the course she assisted her mother for about eight months in an administrative capacity. Her mother, who was a physiotherapist by training, was administering her father’s business interests. She obtained a short-term casual position with the Countrywide Bank. She did not enjoy this work and returned to assisting her mother for about another two months. In 1998 the plaintiff commenced and completed a one-year course known as a Diploma in Travel, Tourism and Business Technology. While doing that course she obtained work with Retail Financial Services as an outbound credit controller. This involved using an automated telephone system to assist in recovering outstanding debts.
When she finished her diploma she worked full-time for Retail Financial Services until March 1999. That job gave her an introduction into the world of credit control but she found it somewhat limiting. In March 1999 she obtained, through an employment agency, a three month contract with Toyota Financial Services. That job was extended for another three months. She then obtained a job working as a credit officer with GE Finance. She became a team leader but was made redundant in April 2000 when GE Finance transferred its credit services to Melbourne. Although she was offered a job with GE Finance in Melbourne she did not wish to move from New Zealand. She then obtained a job with Air New Zealand as a credit controller. After 12 months she was appointed to a position described as “Financial Analyst – Terminal Services”. Although she did not have any accounting training she received that training on the job. The experience of being a financial analyst and being more involved in the accounting side of things convinced her that she did not want to be an accountant.
In November 2002 she obtained employment as a credit manager with L’Oreal at a higher wage than she had been earning with Air New Zealand. Between November 2002 and December 2005 while she worked at L’Oreal there was a period during which she suffered from depression and a period of three months where she was off work because of that condition. She left L’Oreal because there were limited further opportunities for her in that organisation unless she wished to move into accounting related roles.
In December 2005 she obtained employment with Genesis Energy as the corporate credit manager and started work there in March 2006. She stayed with Genesis Energy until August 2007 when because of a restructure of the organisation she was made redundant.
She met her future husband, Siddharth Mahabal (Sid), in early 2006. He was an industrial chemist by training.
In 2008 she was approached by an employment agency and was employed by Fleet Partners, a vehicle leasing business, on a contract which was from April 2008 until March 2009.
In July 2008 she had a slip and fall at home where she fell on her coccyx. This led her to consult her general practitioner who recorded that she had a tender coccyx but the rest of the lower back was not tender.
In March 2009 she married her husband Sid at a wedding ceremony in India. The wedding took place in India because Sid’s family was still in India and it was easier for the plaintiff’s family to travel to India for the wedding than the other way around.
Between March 2009 and February 2010 the plaintiff took some time off work and assisted her husband with his relocation to Tokoroa where he was employed by Carter Holt Harvey. He had been previously working as an analytical chemist with a company called Chemcolour. During this period the plaintiff took short-term contracts doing credit control for two finance companies, one of which was Retail Financial Services.
In February 2010 the plaintiff was employed as the accounts receivable team leader at “The Money Shop” which the plaintiff described as a third tier finance company.
In September 2010 the plaintiff commenced work with Airservices Australia as its billing and credit manager. She had moved to Australia for this position in August 2010. Initially she alone moved in order to see whether or not she liked the job and living in Canberra. In December 2010 her husband Sid followed her. When he did he had some difficulty obtaining employment, doing some short-term contracts outside of his area of expertise and experience. He then obtained a job in about April 2012 as an industrial chemist with an employer in Sydney and worked there from Monday to Friday each week before returning to Canberra at the weekends.
The plaintiff fell pregnant and in September 2012 she commenced maternity leave. Her son, Dashiel, was born in October 2012. The plaintiff’s and her husband’s initial plan was that she would take 12 months of maternity leave. The first year of Dashiel’s life was difficult for both him and his parents.
In November 2012 the plaintiff, suffering difficulties with lactation as well as mood swings, saw general practitioners at the West Belconnen Health Cooperative. She was diagnosed with post-natal depression. Sid’s mother, who had been assisting after the birth of Dashiel, returned to India in mid-January 2013. The plaintiff’s mental condition worsened. In February 2013 she was recorded as having depressed mood, being anxious and suffering from suicidal and infanticidal thoughts. On 8 February 2013 she attended the Canberra Hospital Emergency Department and her mental health was assessed. She was admitted to Calvary Hospital on 10 February 2013 and stayed there until discharged on 20 February 2013. Later in February she and Dashiel were admitted to the Queen Elizabeth II Family Centre (a hospital for mothers and babies) where she stayed for four nights. In March 2013 she continued to get assistance from Dr Jeff Cubis, from a consultant called Sheyne Rowley, from general practitioners and from the staff of the Belconnen Mental Health Team.
By 19 March 2013 she was planning to return to work. Notwithstanding her intention to take 12 months off work, having regard to the decline in her mental health she decided that it would be important for her to attempt to return to work.
She did in fact return to work on 25 March 2013. At the end of her first day back at Airservices Australia she was driving home and about to turn right from Drake Brockman Drive into Macnaughton Street. A car hit her from behind pushing her into the opposite lane. The front of her car was then struck by an oncoming car. The end result of the accident was that her car had been spun around 180°. The force of the initial impact was significant, shearing off the left-hand rear wheel of her vehicle. As a result of the second impact there was also damage to the front right side of her vehicle. The plaintiff’s first recollection of the accident was sitting in the vehicle and somebody knocking on the window of the vehicle to find out whether she was okay. She called her husband who collected her from the site and took her home.
The next day she attended the West Belconnen Health Cooperative where a general practitioner Dr Vishaw Joshi recorded: “she is feeling pain in her left wrist, right elbow and upper thoracic region. no neck pain. no headache, nausea or vomitting [sic].” She was sent for an x-ray the same day. During the next week she started to suffer from pain in her neck and also pain in her lower back. The doctor recorded on 2 April 2013: “… complaint of pain in neck and shoulders and headache constant with nausea which gets worsened on bending. no numbness or weakness. she still has pain in right elbow and left wrist.” Because of her complaint of headache, on 5 April 2013 she was sent for a CT scan of her brain which found no abnormalities. During this period she also consulted with the Belconnen Mental Health Team in relation to the sequelae of the motor vehicle accident. She had started having nightmares about the accident including nightmares about what might have happened if her child was in the car, about dying and about being maimed.
On 18 April 2013 she attended a general practitioner at the West Belconnen Health Cooperative. Dr Anthony Meyer recorded:
MVA involved R shoulder and neck, left knee and R foot. Dull headache, getting better. CT brain NAD. Lower back pain last few weeks. Difficulty caring for baby due to soreness.
She also saw a nurse on the same day about anxiety and depression and her antidepressant medication was changed to mirtazapine.
The plaintiff and her husband together with Dashiel travelled to New Zealand on 23 April 2013 for a funeral and stayed there for a week.
On 8 May 2013 she was referred by Dr Meyer to Canberra City Osteopathy. On 13 May 2013 the nurse at the practice referred her to Ms Belinda Radnidge, a counsellor. She first saw Mr David Howse, a physiotherapist, at Canberra City Osteopathy in May 2013. He gave her physiotherapy for her lower back and whiplash injury and prescribed exercises which she practised but her condition did not improve. During that period she was suffering pain on the right-hand side of the lower back each day from the time when she woke up. The pain grew more intense during the day with prolonged sitting.
On 20 May 2013 the plaintiff returned to work. She felt under some (partly self-imposed) pressure to return to work and she wanted to return because it was important to her identity. She continued to receive physiotherapy.
In July 2013 the plaintiff’s husband and son left to spend seven weeks in Fiji. At that point the plaintiff described that the stress of looking after a sick child and a sick wife was getting too severe for Sid. The relationship between them was stormy and Dashiel still had some health issues.
In July 2013 after Sid had made the decision to go to Fiji with Dashiel the plaintiff saw Ms Radnidge describing suicidal thoughts, worries about the separation from her son and worries about being able to perform adequately at work.
In August 2013 the plaintiff travelled to Fiji for some weeks and then the whole family returned to Australia. That time away did not help her relationship with her husband and she was considering separation.
She continued to consult a psychiatrist working for the Belconnen Mental Health Team.
She had a series of appointments in August and September 2013 including two appointments with medicolegal consultants arranged by the second defendant in these proceedings. One of those consultations, with the consultant occupational physician Dr Matthew Paul, led to an unpleasant incident during which he contacted her husband against her will because he was concerned about her safety.
In October and November 2013 her son Dashiel was continuing to have medical problems which required consultation with specialist doctors. In November 2013 he was required to undergo a rectal biopsy.
On 18 November 2013 the plaintiff was involved in a minor motor vehicle accident in which she clipped a motorcyclist. She was cautioned by police. She was upset because it brought back memories of the accident and because of the fact that she was at fault, putting the motorcyclist through what she had experienced.
On 2 December 2013 she attended her general practitioner. She described herself as being depressed and run down largely because of what she and Sid had been going through over Dashiel’s condition.
She was off work from early December 2013 until April 2014 to deal with Dashiel’s health problems and the consequential difficulties with Sid. Her aim was to look after Dashiel and “get him back on the right track healthwise”. The problems that existed at that stage were that Dashiel would have trouble settling, had difficulty in receiving sufficient nourishment, appeared to be uncomfortable or in pain regularly and behaved terribly if there was any separation from his parents.
No claim for economic loss is made for this period away from work. During this period away from work she and Sid attended Marymead to obtain assistance in dealing with Dashiel.
The situation had improved by April 2014 because Dashiel was then on the right mix of treatments for his reflux and constipation, he was sleeping better and feeding better. As a result of getting proper sleep his personality changed. All those factors helped to improve the relationship between the plaintiff and her husband.
The plaintiff had commenced discussions with her immediate superior, Peter Burgess, about returning to work in early April 2014. Her evidence was that she had been away from work for five months and her symptoms seemed to have progressed and she was feeling worse. She said that the pain was getting more intense. She said her lumbar spine was excruciating most days and her neck and shoulder pain was quite intense as well. She had been in touch with Mr Burgess and about a week prior to her return to work she spoke to Mr Burgess and asked whether she could do reduced hours. He said that was fine and she should just let him know what sort of hours she was talking about.
Mr Burgess gave evidence that he had many conversations with the plaintiff about how he could facilitate her return to work. He could not recall whether he or the plaintiff broached the possibility of part-time work. His evidence in relation to the discussion of part-time work was: “[the plaintiff] was talking about her son was attending school across the road into the childcare facility, and I believe he was having some difficulties adapting and was finishing at about 3 pm each day, so [the plaintiff] needed to be there to collect him.”
On 17 April 2014 Dr Meyer certified that she was fit for full-time work from 22 April 2014.
On 22 April 2014 the plaintiff commenced a part-time position working 55 hours per fortnight. She was working from 9 am until 3 pm with half an hour off for lunch. When she went back to work her symptoms got worse. She found that her lumbar spine, neck and right shoulder were painful and were exacerbated by lifting. Mr Burgess gave evidence that she told him that she was still feeling discomfort.
Initially Sid would drop both her and Dashiel off in the morning and pick them up in the afternoon. However in May 2014 the family moved from Macgregor to an apartment near the plaintiff’s work in the city and then the plaintiff would drop Dashiel off in the morning and pick him up on the way home.
The plaintiff was worried about the long-term security of her employment because she perceived that she was not performing at the same level and was not getting the same results that she had been hired to achieve because of the various disruptions to her employment. She disclosed those concerns to a nurse practitioner at the West Belconnen Health Cooperative on 2 June 2014. While she did suffer from this anxiety her perception does not appear in reality to have reflected her work situation. While she was unable to perform at the level that she previously had and there were some minor issues raised with her by her superiors Mr Burgess and David Kille, the plaintiff’s perception of her work situation was more adverse than the reality warranted. Her managers remained supportive of her returning to work and accommodated any ongoing difficulties that she had because she remained a valued employee.
In August 2014 the plaintiff travelled to New Zealand to visit her mother and on 27 August 2014 she resumed full-time hours with Airservices Australia. At that point problems with her elbow and foot and headaches had got better. She continued to have problems with her neck and back. Nightmares that she had following the accident had resolved by the end of 2013.
Although when working part-time she had dropped off and picked up Dashiel at childcare, when she changed to full-time work Sid then dropped off and picked up Dashiel.
Over the last year the plaintiff’s mental health has improved significantly when compared to the period following Dashiel’s birth. She has had to have less engagement with the Crisis Assessment and Treatment Team and would not consider herself to be depressed on a daily basis. Her relationship with Sid has improved although she still has concerns about her job and her future at Airservices Australia.
On 14 February 2015 the plaintiff saw a general practitioner, Dr Kingsley Okolie, at the West Belconnen Health Cooperative. The notes from that consultation record:
Complained of lower back and neck pains; The pain is said to be radiating to the limbs. She had MVA few years ago, and had a whip-lash injury … She returned to full working hours in August, 2014, but things have not been working well since then. She had tried panadol, Panadeine Forte, NSAIDs, with no much improvement.
She was certified as fit to work six hours per day five days per week. The defendants suggested that the Court should treat the reduction in hours with some caution when assessing the plaintiff’s ongoing capacity for paid employment. That was because of the coincidence between a letter from the plaintiff’s solicitors on 13 February 2015, a visit to Dr William Patrick the same day and then the visit to the general practitioner the next day certifying a reduction in hours. The letter from the plaintiff’s solicitors disclosed an intention to recast the manner in which the claim for economic loss was made. That was said to be because the plaintiff had struggled to work more than 27-30 hours per week and she proposed to raise that issue with her employer because she felt she was being unfair to them by continuing to receive a full-time wage when actually working fewer hours. Dr Patrick recorded that “she has been struggling and the best she could achieve was working between 27 and 30 hours per week usually”.
In his oral evidence Mr Kille said that the plaintiff had told him prior to reducing her hours that she had been struggling to perform full-time hours and that in contrast to her performance prior to going on maternity leave she had on occasions left work early.
I accept the evidence of the plaintiff that her reduction in working hours was caused by her ongoing back and neck pain arising from the accident. Although I cannot say that the hours that she reported working up until that point were as little as 27-30 hours per week she did find it difficult to perform at the level which she expected she should be able to perform during full-time hours and there were occasions when she worked less than those full-time hours. I accept that the plaintiff continued to suffer pain and difficulties while working and that having regard to the plaintiff’s pre-accident performance at work and her persistent anxiety in relation to her work performance the certification on 14 February 2015 reasonably reflected her work capacity at that point.
The extent to which that disability is causative of a loss of earning capacity
The fundamental issue in this case is the degree to which the plaintiff’s injuries have been and will continue to be causative of economic loss. The assessment of that is made more difficult in the present case by three matters:
(a)the relatively short time since the accident which means that there is not a substantial period during which the extent of causally related economic loss may be assessed and the prospects for improvement or deterioration in the plaintiff’s condition can be assessed;
(b)the fact that during the period since the accident the plaintiff has suffered from significant psychological issues and has had to cope with the health difficulties of her young child, complicating any assessment of the causal effects of the accident;
(c)the fact that the expert medical evidence in the case does not provide any clear prognosis as to the likely future development of the plaintiff’s condition or the effect that the condition is likely to have on the plaintiff’s capacity to earn.
Positions of the parties
The contentions of the plaintiff were that in relation to the contentious area of past loss, namely the period of part-time work between April 2014 and August 2014, the Court should find that the limited hours were a result of the plaintiff’s injuries. On the other hand, the defendants contended that the Court should find that the decision to return to work on a part-time basis was a result of the plaintiff seeking to accommodate her child’s transition to childcare.
In relation to future loss the plaintiff contended the evidence was that the injury was a permanent one and there was no evidence that it was likely to improve or resolve. Therefore the Court should make an award for the balance of the plaintiff’s likely working life. The plaintiff submitted that the plaintiff would suffer approximately a one third loss of earning capacity and that a slightly higher than usual reduction on account of contingencies should be made. On the other hand, the defendants submitted that having regard to the plaintiff’s work history, her undoubted competence and motivation to do her job and the important part that her working life played in her psychological well-being, it was likely that, once these proceedings were concluded, the plaintiff would return to full-time work. It was also likely that, even though the plaintiff may continue to suffer ongoing neck and back pain, that pain was unlikely to be causative of economic loss because the plaintiff would be able to continue to work full-time in her job.
General propositions
Firstly, it appears to be uncontroversial (and I find) that the plaintiff is good at her job. She had significant experience prior to arriving at Airservices Australia and Mr Kille said that she had some innovative ideas which were useful in remedying previous difficulties with the credit management department which by the time she went off on maternity leave was functioning far better than it had been. She manages a team of four staff. She is well paid. She clearly has the respect and confidence of both Mr Burgess and Mr Kille.
Secondly, the plaintiff is very motivated to work. Work is a very important part of her life. Going to work and being successful at work are very important to her psychological well-being. As a consequence, she is somebody who is likely to be highly motivated to work and to perform well at work.
Thirdly, she has, since 2010, been the principal breadwinner in the family. Obviously, it is difficult to predict the future, particularly as the plaintiff has a young child and there is at least the possibility that she may have more children. However the starting point in assessing what will occur in the future must reflect the structural importance of her working life to her.
Fourthly, the plaintiff is particularly fortunate to work in an organisation which is sympathetic to and accommodating of her personal situation. It is a work environment which not only is likely to allow some effort to be made to accommodate her physical condition but is also one where, although she is largely desk bound, she retains some control over the manner in which she works and the extent to which she can take breaks or move around so as to avoid worsening in her back and neck conditions.
Past loss of earnings
There was no dispute that past loss of earnings for the period 25 March 2013 to 20 May 2013 in the sum of $15,706 should be awarded. Similarly, although the reasons for the conclusion differ somewhat between the parties, there was no dispute that losses for the period from 16 February 2015 until the date of judgment should be assessed at $300 per week. This gives an amount of $8,100 (27×300).
In relation to the past the defendants submitted that the part-time work between April 2014 and August 2014 was a result of the plaintiff’s desire to assist with her son’s transition to childcare. The defendants point to what Mr Burgess said he was told by the plaintiff about the reason for wanting to return on a part-time basis. They point to the fact that on 17 April 2014 the plaintiff was certified as fit for full-time work. They point to the plaintiff’s answers to the declaration in a Hannover Re Group insurance application form in which the plaintiff declared that “at the date of this application I am not absent from work for reasons of illness or injury and I am performing all of the duties of my usual occupation.” Finally they point to the statement by her treating doctor for the purposes of the Hannover Re Group application that the plaintiff’s back pain following the motor vehicle accident was “not [a] significant ongoing problem”.
The plaintiff points out that the Hannover Re Group document, read as a whole, clearly indicates that the plaintiff disclosed that she had recently suffered from back pain and that she was restricted in performing her usual activities or occupational duties or had been unable to work or required time off work. The plaintiff submitted that the question of whether her part-time work was caused by the injury is best assessed having regard to what is known about the plaintiff’s work performance. Senior counsel for the plaintiff pointed to the evidence of Mr Kille that there was no occasion prior to the plaintiff going on maternity leave that her work performance required any comment. He pointed to the opinion of Dr John Saboisky that it was unusual that having regard to the plaintiff’s psychological condition there had been so few absences from work. He submitted that she would not have chosen anything other than full-time work unless it was impossible to go full-time. He pointed to the fact that her husband did not have paid employment and was available to assist with the transition of their son to childcare. He pointed to the fact that Mr Burgess had no particular interest in the plaintiff’s physical difficulties and that the plaintiff’s pride may have affected how she explained her request for part-time work.
While the existence of some ongoing back pain may have been a factor relevant to her decision to return to part-time work I am not satisfied that it was the cause. I am not satisfied that but for the accident the plaintiff would not have chosen in any event to reduce her working hours modestly in order to ensure that her son was able to settle in to his new regime. In the period from May 2013 through to December 2013 the plaintiff was back working full-time. There were very significant difficulties during that period with her son’s health and with her relationship with her husband. While she managed over a number of months to hold things together she could not keep up full-time work. The period between December 2013 and April 2014 was an opportunity to get her son’s health condition under control and also to obtain assistance with her relationship with her husband. Having regard to that history, the fact that during the period she is not recorded as having sought any treatment or having made any complaint to her general practitioner in relation to back and neck pain and the fact that she was certified as fit for full-time work by her general practitioner on 17 April 2014 I consider it more likely that the request for part-time employment was motivated by a desire to assist in the transition of her son into childcare and was a course which would have been adopted even without the added difficulties caused to her health by the accident.
In final submissions no claim for interest was made on past economic loss, the bulk of which has already been paid by the second defendant. Therefore I make no award of interest in relation to the past.
Future loss of earnings
Submissions
In relation to the future the defendants point to a number of factors which they submit would lead the Court to the conclusion for which they contend.
Firstly, the defendants submitted that the plaintiff had not been entirely frank in disclosing her reason for returning to part-time work in 2014. They draw attention to the differences in the evidence given by the plaintiff on the one hand and Mr Burgess and Mr Kille on the other about what was said at the time that she was returning to work.
They pointed to the particular sensitivity of the plaintiff in relation to her work performance and observed that her decision to move to full-time work in 2014 occurred shortly after there was some mild criticism from Mr Burgess about her work performance.
Secondly, the defendants submit that the plaintiff’s evidence that she told Mr Kille that she had not been working full-time hours should not be accepted. While the defendants accepted that she is likely to have told Mr Kille that she was, on occasions, struggling with her work that was a discussion which was prospective and not retrospective.
Thirdly, the defendants point to the incorrect information given to Dr John McMahon and Dr Bruce Stevens that the plaintiff was working 22.5 hours per week when in fact she was working full-time. The defendants draw attention to the sequence of events surrounding the plaintiff’s solicitors’ letter of 13 February 2015 and her certification as fit for part-time work the next day.
Fourthly, they point to Dr Saboisky’s evidence indicating that the litigation process itself was stressful and submit that even in the absence of any finding that the plaintiff was less than completely frank, the Court should find that once the litigation process has concluded that source of stress and anxiety will be removed and the plaintiff will be in a position to return to full-time work. In that regard they point to the evidence of Mr Kille and Mr Burgess to the effect that the plaintiff was not in fact having any significant problems at work and was in fact able to perform adequately and was not working less than required.
Fifthly, senior counsel for the defendants submitted that this was not a case where it was possible for a medical practitioner to accurately assess the likely impact on the plaintiff’s working capacity. He pointed to uncertainties in Dr Gautam Khurana’s report. In particular he pointed to the statements made by Dr Khurana that psychiatric issues were beyond his expertise yet he attributed at least part of any disability to psychiatric factors. He submitted that the evidence of Dr Patrick that the plaintiff was only capable of working 24 hours per week and that her prospect of returning to full-time work was in the order of one or two per cent was not realistic having regard to the fact that he had only seen her on one occasion and it was now only two years post-accident. Instead he submitted that the most cogent medical evidence was that of Dr Saboisky to the effect that the plaintiff is likely to be able to return to full-time work after the conclusion of the proceedings. In particular he pointed to the plaintiff’s resilience in coping with difficulties in her life in the past and in particular her capacity to work notwithstanding those difficulties. He pointed to her undoubted motivation to work, the fact that she is working in a job for which she is suited and the fact that her workplace is one which can accommodate any residual physical problems that she has.
In those circumstances the defendants have suggested that an award of damages by way of a buffer equivalent to a net loss of $300 per week over two years rounded up to $50,000 to accommodate the risk of slightly greater incapacity would be appropriate.
The plaintiff submitted that the evidence of Dr Saboisky should be treated with care because he proceeded on an assumption, not made good by any of the medical experts who gave evidence in relation to the plaintiff’s physical problems, that her complaints of pain and disability were disproportionate to the injury suffered. In oral evidence Dr Saboisky agreed that he had expressed his opinion on the basis that the plaintiff suffered “relatively minor physical problems which ought to have resolved themselves within months of the accident”. The plaintiff submitted that this opinion could only be accepted if the Court did not accept the evidence of the doctors who gave evidence about the plaintiff’s physical condition.
Senior counsel for the plaintiff pointed to the evidence of Dr McMahon which indicated in relation to his diagnosis of “Chronic Pain Associated with Both Psychological Factors and a General Medical Condition” that although “[s]ome of the psychological factors at play were pre-existing ... the anticipatory anxiety and pain behaviours are consequent to the injury and thus to the accident.”
He pointed to the evidence of Dr Khurana that the plaintiff was fit for part-time work at approximately two thirds of her regular hours and that his estimate was that there was a 33% to 50% loss of physical work capacity one third of which had a physical basis. He pointed to the fact that although Dr Khurana referred to the acceleration of the plaintiff’s pre-existing spondylitic condition which “would likely have become symptomatic in due course”, the burden was on the defendants to provide a basis for when that might have been and the defendants had not done so. Finally, he referred to the report of Dr Paul which was consistent with there being a permanent physical problem. He referred to the evidence of Dr Patrick as indicating a working capacity of 24 hours per week at a time when the plaintiff was in fact working 30 hours per week.
As a consequence he submitted that all of the expert opinions on the plaintiff’s physical condition were consistent with the plaintiff suffering a genuine permanent injury to her back which was inconsistent with the assumption underlying Dr Saboisky’s report.
In relation to the plaintiff’s return to part-time work in February 2015, senior counsel for the plaintiff drew attention to the fact that the evidence of the plaintiff’s husband to the effect that she was in a lot of pain, unable to get up and start work at 8 am, unable to get to sleep at night and suffering from pain and headaches had not been effectively challenged in cross-examination and hence should be accepted.
Medical evidence
In my assessment I will focus on the medical reports which received attention during the course of evidence and submissions. The reports of Dr Anthony Smith, orthopaedic surgeon, dated 6 August 2013, 10 September 2013 and 21 November 2013 and the report of Dr Doron Samuell, psychiatrist, dated 3 October 2013 received either no mention whatsoever or were only referred to in passing. The reports of the occupational therapists were not commented upon other than to note their length. I will therefore address the evidence of Dr Paul, Dr Saboisky, Dr Khurana, Dr David Champion, Dr Patrick and Dr McMahon.
Dr Paul saw the plaintiff on 17 September 2013. At this point she was working full-time. He said that there were no neurological signs indicating radiculopathy. He said that:
It appears as a result of the motor vehicle accident she suffered aggravated underlying cervical spine degeneration and developed some nerve root irritation resulting in some referred right-sided shoulder pain which is persistent. She also suffered some soft tissue injuries to her lower limbs and to her right elbow which she appears to have recovered from. She stated that she also had a headache for several weeks after the accident which has resolved.
She stated that two weeks after the accident she developed some lower back pain. Investigations of the lumbar spine have shown some underlying and likely pre-existing degenerative changes. It is reasonable to believe that as a result of the accident these underlying degenerative changes have become aggravated.
He indicated that she may benefit from a multidisciplinary pain management program. He indicated that she had some fear avoidance behaviour likely due to chronic pain as a result of the motor vehicle accident. He indicated that he believed she was capable of returning to normal activity at home and should be encouraged to do so. He did not consider that she needed any specific personal or domestic assistance and that she was fit to perform her usual duties and hours. He did not consider that her injuries had stabilised.
Dr Champion, a specialist in rheumatology and pain medicine, saw the plaintiff on 25 February 2014, a time when she was not working. In relation to the report of Dr Paul, in particular the apportionment of 50% of the plaintiff’s treatment needs to her pre-existing cervical and lumbar spine degenerative condition, Dr Champion said that in his view this was an over estimate of the importance of pre-existing degenerative changes and that the plaintiff “may well have gone on for many years as many people do with underlying spondylosis without treatment without symptoms were it not for the advent of the MVA”. Dr Champion’s diagnosis was multilevel cervical spinal pain syndrome of the whiplash-associated disorder category. He found no definite signs of radiculopathy. He found an upper thoracic spinal pain syndrome felt mainly at the cervicothoracic junction as well as a lumbosacral spinal pain syndrome with deep somatic referred pain and right L5 and particularly S1 radiculopathy. He said that the plaintiff was “clearly unfit for work and has been so since November 2013”. He said:
Her prospects of being able to return realistically to her former job, or any other gainful employment, are looking poor. However she is still relatively young and in years to come might well make some recovery, sufficient to re-enter the workforce at least part-time. As a consequence of the motor vehicle accident there has been substantial interference with her life work capability, a reduction which could well be significantly more than 50%, while acknowledging that such future estimations are of relatively low validity.
He considered that “[s]he would probably best be managed in a multidisciplinary chronic pain service or a rehabilitation service with pain medicine inputs as well as neurology/neurosurgical guidance.”
Dr McMahon, a clinical psychologist, saw the plaintiff on 19 December 2014. In his assessment he records that the plaintiff’s self-concept “appears to involve a generally harsh, negative self-evaluation”. He also records that: “She is prone to be self-critical and pessimistic, dwelling on past failures and lost opportunities with considerable uncertainty and indecision about her plans and goals for the future.” His diagnosis was “Major Depressive Disorder, Recurrent” and “Chronic Pain Associated with both Psychological Factors and a General Medical Condition”. As I have recorded above, he was of the opinion that the anticipatory anxiety and pain behaviour was a consequence of the injury and hence the accident. He recommended that once she was psychiatrically stabilised she may benefit from a chronic pain program such as that offered by the Royal North Shore Hospital, which is a one-week intensive program, followed by some additional therapy over one to two years.
Dr Patrick, a general and vascular surgeon and trauma surgeon, examined the plaintiff on 13 February 2015. This was the same day the plaintiff’s solicitors wrote the letter referred to at [45] above. Dr Patrick was of the opinion that the motor vehicle accident caused:
hyperextension/flexion and rotational injury to cervical spine with likely cervical zygapophyseal joint and ligamentous injuries and significant aggravation of pre-existing but minimally symptomatic spondylotic change at C4/5 and C5/6 levels at cervical spine; and also likely thoracic vertebral facet joint/ligamentous injuries, and lumbar spinal facet injuries and causation and/or aggravation of disc bulging between L3 and S1 at lumbar spine without large disc herniation and without evidence for radiculopathy; and also some likely seatbelt injury to right shoulder with a mild degree post-traumatic subacromial bursitis/impingement.
He could not find definite evidence of radiculopathy in either the upper or lower limbs.
He was of the view that having regard to the imaging, other reports and the plaintiff’s overall presentation as well as his findings on clinical examination, working 24 hours per week would be sustainable. He considered it was unlikely that she would be able to carry out a full-time position in her current job into the foreseeable future. He thought 24 hours spread over three or four days would be desirable.
Dr Saboisky, a consultant psychiatrist, saw the plaintiff on 17 February 2015. At this point the plaintiff was working full-time although she had just been certified as fit for reduced working hours. Dr Saboisky recorded that “[s]he has complaints of chronic pain which seem disproportionate to the type of injury she sustained.” He indicated that there was no psychiatric reason why she could not work full-time currently. His prognosis was described as follows:
I think her prognosis is reasonable. She was working full-time but has reduced her workload, principally I believe, because of the impending Court Case.
He also recorded that:
[H]er current psychiatric disability is principally related to the tension surrounding the Court Case and is not due to the accident per se. She has ongoing physical symptoms which, given the length of time from the accident, appear to be a disproportionate response to the accident itself.
Dr Khurana, a brain and spine surgeon, saw the plaintiff on 5 March 2015. He was, rather unhelpfully, briefed with 1200 pages of documents by the defendants’ solicitors. Although he was asked to answer specific questions by the defendants’ instructing solicitors, those questions were not set out in the body of his report and his letter of instructions which contained the questions was not tendered. Therefore it is only by inference that the questions he was answering can be discerned. He concluded that it is likely that the plaintiff suffered some aggravation of underlying but asymptomatic cervical spondylosis and lumbar spondylosis from the accident. He said:
From a neurosurgical perspective, her current diagnosis appears to be consistent with a mild right C6 radiculopathy and some mechanical low back pain with mild right L5 radiculopathy. She would benefit from losing weight and ongoing control of her diabetes mellitus. The physical/neurological condition, in my opinion, is not as significant as the psychological/psychiatric condition.
He concluded that from a physical perspective she was fit for part-time work. He recorded:
The physical injuries, particularly aggravation of the cervical and lumbar spondylosis may interfere with full-time work capacity, but should not interfere with part-time work capacity, particularly if avoidance of any significant lifting and repetitive twisting/bending is adhered to, in addition to the use of a sit/stand desk, in addition to the ability to get up walk and stretch as needed. Interestingly, Ms Singh told me she was looking forward to meeting clients face-to-face in the future and my overall impression was that she was happy with her work environment and was satisfied that it was a ‘more than supportive’ type of work environment, and I felt part-time participation in that would be reasonable at this time. The estimate of part-time suitable hours from a physical perspective is 1/2 to 2/3 of her full-time hours. Again, the limitation may be psychological/psychiatric; again this is not the area of my expertise.
In relation to the effect of her pre-existing degenerative condition he recorded:
The pre-existing spondylotic condition would likely have become symptomatic in due course, but its symptomatology was likely accelerated by the motor vehicle accident ... I think the aggravation of the cervical and lumbar spondylosis is bona fide and attributable to the motor vehicle accident, but I cannot exclude a substantial overlay from the pre-existing psychological/psychiatric history.
He was then asked to apportion her disability between psychological/psychiatric causes and physical causes. He said that there was a 33% to 50% loss of physical work capacity and attributed one third of that loss as coming from a physical basis.
Conclusions in relation to future economic loss
The defendants did not run a case which sought to demonstrate that the plaintiff’s other conditions namely her diabetes, her psychiatric condition unrelated to the motor vehicle accident or her underlying degenerative changes would, in any event, have caused the economic loss. Rather the case was that because of the particular circumstances of the plaintiff and the level of injury that she had suffered, that injury would not be productive of other than very modest economic loss in the long term.
I accept the plaintiff’s submissions that the opinion of Dr Saboisky was affected by his characterisation of the plaintiff’s complaint as inconsistent with the nature of the injuries that she suffered. His assumption was inconsistent with the contemporaneous reports of Dr Patrick and Dr Khurana, both of whom recognised continuing cervical and lumbar pain caused by an aggravation of the degenerative changes in the plaintiff’s spine which affected her capacity for full-time work. Therefore I do not place as much weight on Dr Saboisky’s opinion as I would otherwise. I accept his opinion that the pendency of these proceedings is a source of stress and anxiety for the plaintiff and that her psychological condition may improve once these proceedings are in the past. That in turn may assist her in coping better with managing her pain.
I do not accept the opinion of Dr Patrick that it would be reasonable to expect her to only work 24 hours per week. That was less than the amount that she was working at the time when the doctor saw her and less than the hours that she had actually worked at any time since the accident when she had been at work. I consider that the prognosis was somewhat too pessimistic and, in any event, one which could not be relied upon as a long-term estimate of the plaintiff’s work capacity. However I do accept, in the light of both Dr Patrick’s and Dr Khurana’s reports, that the motor vehicle accident has caused pain which continues to affect the plaintiff’s capacity for full-time work.
I accept the evidence of Dr Champion as to the fact that the plaintiff suffered from cervical and thoracic pain syndromes. While I accept that his opinion as to the plaintiff’s poor prognosis and likely difficulty in returning to work reflected his assessment of the position as at March 2014, it is clear that as matters have turned out the plaintiff’s prospects are more favourable than he assessed them to be at that point in time. I do not accept that as things presently stand her prognosis is poor. Obviously, things have changed since March 2014 when the plaintiff was not working at all. I accept Dr Champion’s opinion about the value of a multidisciplinary approach to managing the plaintiff’s pain.
Dr Paul, Dr Patrick and Dr Khurana accepted the validity of the plaintiff’s complaints of pain and provided a reasoned basis for explaining the aggravation of underlying cervical and thoracic degenerative changes. The extent to which the chronic pain arising from those changes can be managed over the long-term was not clear.
In summary, the plaintiff is stuck with an aggravation of underlying degenerative changes in her back and neck which are presently generating chronic pain and which have the potential to continue to do so. The medical evidence only provides a limited basis on which to assess the extent to which the plaintiff’s medical conditions will be productive of financial loss. All parties appeared to accept that the ultimate conclusion will be significantly influenced by the Court’s assessment of the plaintiff and the extent to which she will go to work notwithstanding that she suffers from neck and back pain.
My conclusion is that the plaintiff will continue to suffer from neck and back pain. It is not possible to say on the basis of the evidence whether the physical conditions giving rise to that back pain will improve or deteriorate over time. Similarly, it is not possible to say whether the psychiatric aspects of pain management will improve or deteriorate over time. Medical intervention such as through a pain management course may improve the plaintiff’s ability to cope. On the other hand, other matters in her life which impact upon her ability to cope are likely to also affect her ability to manage pain.
In my view the appropriate way of dealing with the question of economic loss in these circumstances is to deal with the matter by way of a buffer for economic loss which recognises the prospect that over the many years of her working life ahead there may be times where the injuries that she has suffered are causative of a need to take time off work that she would not otherwise take. It also recognises that her ability to cope with pain may be improved by less difficult circumstances in her personal life and also that her motivation and resilience may be affected if she no longer has available to her the present job which she enjoys and which is supportive of her condition and particularly suited to her skills. There are simply too many uncertainties to permit future economic loss to be dealt with in any way other than by way of a buffer. The manner in which I have arrived at the quantum of the buffer is similar to that contended for by the defendants. The defendants submitted that a buffer of $50,000 should be awarded equivalent to a loss of income of approximately $300 per week over a two-year period adjusted upwards somewhat to take into account the possibility that the level of disability might be greater. In my view, a buffer of $85,000 would more appropriately reflect the likely level of loss having regard to the long period with which the Court is dealing. This is the equivalent to the difference between her full-time net salary and that payable for working 30 hours per week over a period of six years discounted at 3%. This, in my view, gives better recognition to the long period in which the plaintiff may continue to suffer from pain arising from her injuries and the uncertainties surrounding how those injuries may affect her having regard to that long period.
I do not accept that the future loss of income should be calculated on the basis of a one third loss of capacity up until the age of 67 less 20% for vicissitudes. In my view that not only overstates the level of likely disability but also assumes too great a degree of certainty as to both her experience of pain and the income loss that it generates over the balance of her working life.
Having regard to the fact that the matter is dealt with by way of a buffer I do not think it is appropriate to make any additional discount of the award on the basis of the vicissitudes of life.
In light of these conclusions it is possible to deal relatively quickly with the other aspects of damages.
General damages
The plaintiff was involved in a moderately severe motor vehicle accident. She was very fortunate that the immediate effects of the accident were not worse. In relation to the period up until trial it is clearly a matter of some difficulty to disentangle the effects of the motor vehicle accident from the effects of the plaintiff’s unrelated psychiatric condition, her child’s health difficulties and the consequential effects on her relationship with her husband. However the effects of pain arising from the accident made her position more difficult. Currently she manages her ongoing back pain with non-prescription medication. The back pain clearly has an impact upon her enjoyment of life and affects her capacity to work and more importantly her satisfaction derived from work. Her back pain makes her more vulnerable to other stresses in her life. Her back pain is a long-term condition and there is a real prospect that it will be permanent. In my view an appropriate award for general damages is $100,000 attributing $50,000 to the past. This generates interest for the past of $2,400 (2% x $50,000 x 2.4 years).
Superannuation
The enterprise agreement governing the plaintiff’s employment provided for the payment of superannuation at the rate of 13.50% of gross income from 1 July 2015 increasing to 14.00% from 1 July 2016. In the absence of any actuarial evidence as to the appropriate percentage to apply to net economic loss, the parties agreed that a rate of 15.50% of the net award was appropriate.
This results in superannuation loss for the past of $3,690 and superannuation loss for the future of $13,175. In final submissions no claim for interest was made on the past loss.
Griffiths v Kerkemeyer
The defendants submitted that an appropriate award for past Griffiths v Kerkemeyer damages was $11,000. This was adopted by the plaintiff. I will therefore award $11,000 for the past. In final submissions no claim for interest was made on this amount and therefore I do not award interest.
In relation to the future, the defendants submitted that an amount of $50,000 was appropriate. This was based on a claim of three hours’ assistance per week gradually reducing over time. On the other hand the plaintiff submitted that an award of $165,375 was appropriate. This was based upon 26 years of domestic assistance at three and a half hours per week. The parties were in agreement that a rate of $35 per hour was appropriate. The evidence established that prior to the accident the plaintiff was responsible for housework but that since the accident her husband is required to perform it. The significant issue between the parties was how long the domestic assistance will be required for. In addition to the uncertainties surrounding the plaintiff’s condition the defendants also submitted that having regard to the fact that the plaintiff’s husband was contemplating going into business it was likely that even in the absence of any injury to the plaintiff the couple would engage domestic assistance to assist with those tasks which the husband was performing because of the plaintiff’s injury. As with future economic loss there are very significant uncertainties in relation to the future. The award proposed by the defendants is the equivalent to three hours per week over a period of ten years. In my view the amount of $50,000 represents an appropriate award of damages under this head even though it is not possible to say that it will be required in this way.
Out of pocket expenses
In relation to the past, out-of-pocket expenses were agreed at $4,531.72. I will round that figure up to $4532. This was the amount paid by the second defendant and in those circumstances no award of interest is appropriate.
In relation to the future the plaintiff claimed $45,000 and the defendants submitted that an award of $15,000 would be appropriate. There was an absence of evidence as to the cost of a pain management program. The plaintiff submitted that $15,000 was appropriate for this component. The defendants referred to Dr Champion’s report which made reference to a figure of $4,000 to $8,000. In my view there is a clear need for a pain management program. Given the uncertainties as to the evidence I will award an amount at the upper end of the range for which there is evidence namely $8,000. The requirement for medication is limited as the plaintiff takes over-the-counter medicine with unspecified regularity. Her life expectancy is 49 years. An expenditure of $4 a week over her life expectancy on over-the-counter medication would lead to a figure of $5,400 (multiplier 1350.6). In my view the claim of $5,000 is a reasonable one. The plaintiff also claimed an additional amount for additional general practitioner consultations, investigations and specialist referrals of $5,000. This appears to me to be a reasonable buffer amount in the circumstances. This leads to a total award for future out-of-pocket expenses of $18,000.
Summary of damages
General Damages Past $50,000 Interest on past component $2,400 Future $50,000 Income Loss Past $23,806 Future $85,000 Superannuation Loss Past $3,690 Future $13,175 Griffiths v Kerkemeyer Past $11,000 Future $50,000 Out-of-pocket expenses Past $4,532 Future $18,000 Total $311,603
Orders
The orders of the Court are:
1. Judgment be entered for the plaintiff against the second defendant in the sum of $311,603.
2. The usual order as to interest.
3. The second defendant is to pay the plaintiff’s costs as agreed or assessed.
4. Order 3 does not take effect if, within 14 days, either party notifies my associate in writing that it wishes to be further heard in relation to costs.
| I certify that the preceding one hundred and four [104] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 21 August 2015 |
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