Sohn v Minniti
[2002] WADC 7
•18 JANUARY 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SOHN -v- MINNITI [2002] WADC 7
CORAM: LA JACKSON DCJ
HEARD: 26 - 30 NOVEMBER 2001
DELIVERED : 18 JANUARY 2002
FILE NO/S: CIV 628 of 2000
BETWEEN: SUSAN ROSEMARY SOHN
Plaintiff
AND
DOMENIC MINNITI
Defendant
Catchwords:
Assessment of damages for personal injury - Injury to shoulder and mouth - Psychiatric injury - Decided on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943, s 3C and s 3D
Result:
Damages awarded at $113,254.23
Representation:
Counsel:
Plaintiff: Mr D R Clyne
Defendant: Mr J R Brooksby
Solicitors:
Plaintiff: Friedman Lurie Singh
Defendant: Greenland Brooksby
Case(s) referred to in judgment(s):
Tubemakers Australia Ltd v Fernandez (1976) 50 ALJR 720
Case(s) also cited:
Nil
LA JACKSON DCJ: The plaintiff's claim is for damages for personal injury arising out of a motor vehicle accident on 5 July 1998.
The plaintiff was born on 21 January 1963 and was therefore aged 35 at the date of the accident and 38 at trial.
The plaintiff was a passenger in a Toyota Tarago being driven by her husband Erwin Sohn in Yirrigin Drive, Dianella. It was slowing to turn to the right when it was struck in the rear by a vehicle driven by the defendant. The defendant's vehicle was equipped with a bull bar. I have no doubt the force of the collision was significant but perhaps not quite as hard as claimed. I note that the plaintiff told Dr Geoffrey Shulman, her general practitioner, that the force of the impact concertinaed the back of the car into the rear seat. Photographs do not support that contention. Liability is not in issue.
The plaintiff suffered some bumps and bruises which for the purpose of an assessment of damages have no significance. The plaintiff claims to have suffered an injury to her left shoulder, an injury to her mouth, and psychiatric consequences.
The plaintiff
The plaintiff was born in South Africa. She was born with a hair lip and a cleft palate which required significant surgery over many years to endeavour to rectify the problems. By the time the plaintiff emigrated to Australia in July 1997 she claims, and I accept, her mouth was in a reasonably stable condition although it may have required some further surgical work in the future.
The plaintiff was educated in South Africa to a tertiary level gaining a Bachelor of Commerce degree. This degree qualified her for accounting and bookkeeping work. She had worked in the retail industry whilst a student and between 1989 when she graduated and 1995 she worked in various accounting and allied occupations. During that time she had three children born on 2 January 1990, 17 December 1990, and 18 November 1992 respectively. For two years during 1995 to 1997 the plaintiff worked for her husband who was a lawyer with his own practice in South Africa. The practice was described as a one man practice in which he employed the plaintiff as a bookkeeper, a receptionist/typist, and a clerk.
When the plaintiff's husband came to Australia he was required to study for and pass two subjects before he could be admitted to the Bar. The first of these was completed in the second half of 1997 and the second in the first half of 1998. The plaintiff's husband was admitted to the Bar on 9 September 1998.
The accident
The plaintiff was a front seat passenger in the Tarago. Her husband was driving. Their second child, a daughter aged about 7½ was seated in the middle of the front of the two seats. A Tarago is a vehicle capable of seating eight passengers with two rear bench seats. As the Tarago slowed preparatory to turning right the plaintiff's husband turned the wheels to the right. The defendant's vehicle crashed into the back of the plaintiff's vehicle. The angle of the front wheels caused the Tarago to spin to its right.
The plaintiff at the time of impact was leaning forward and looking down into a shopping bag. Upon impact her daughter screamed. The plaintiff says, and I accept, that she is unable with any precision to describe what happened to her at or immediately after impact. She says she was conscious of trying to reach the child to assist or comfort her. The plaintiff is a small woman and the backs of the front seats in the Tarago are quite high. She was unable to reach back with her right arm and therefore endeavoured to reach the child with her left by swinging around to her right. She was wearing a seatbelt and this restricted her movement. She says she received a blow to the mouth. She says she does not know what hit her or what she hit except to say that the ashtray in the Tarago in which coins were kept for parking meters and the like had come out and it might have been that that hit her or it might have been a coin or she might have hit her mouth on the gear lever of the Tarago. She says her right foot was caught under the seat of the Tarago causing a bruise to her right calf. It was argued that the configuration of the front of the Tarago does not have a gap under the seat because the floor slopes up to the seats. The plaintiff says the seat was dislodged and that may have caused her foot to catch but otherwise she is unable to explain how it occurred. She saw a doctor within a couple of hours of the accident and the bruising was noted and I therefore accept the plaintiff's explanation. She says she bumped her head on the left side. She gave no evidence of any direct blow to her left shoulder.
In my opinion the defendant makes too much of the plaintiff's inability to explain exactly what happened immediately after the accident and the injuries she suffered. It is suggested the plaintiff is reconstructing what occurred and she freely admitted that that was the case. However, it does not mean that her claim that she was injured is false. Her inability to explain exactly what happened and how she was injured does not relieve the defendant of the liability for his negligence.
The shoulder injury
The plaintiff claims to have injured her left shoulder resulting in a winged scapula, significant limitations of movement to her left arm and disability to the left hand. This is the injury about which most of the dispute between the parties has occurred.
In summary the plaintiff's claim is that she has suffered an injury to her left shoulder. She has a winged scapula. The winging or protruding out of the scapula is caused by a weakness in the muscles that would normally keep the scapula in place. The muscle used for that purpose is the left serratus anterior muscle. That muscle is primarily served neurologically by the long thoracic nerve and the most logical explanation of a winged scapula is nerve damage to the long thoracic nerve causing the left serratus anterior muscle to cease working and to no longer hold the scapula in place. EMG and MRI tests have failed to demonstrate any pathology consistent with such an injury. In particular an MRI scan performed shows the serratus anterior muscles on both sides to be of equal bulk and not to have any apparent injury. However, it was acknowledged that an MRI test does not show whether or not the muscle is otherwise working. Certainly it is the case that generally when a muscle is injured it will atrophy or waste to some degree. In the absence of any wasting it is arguable that the muscle is still working normally.
EMG tests of the muscle were conducted on two occasions, namely 5 September 1998 and 23 March 2001. They failed to show any abnormality in the muscle.
But the scapula is severely winged. Dr John Kagi advanced the theory that the plaintiff is consciously voluntarily demonstrating a winged scapula. The vast bulk of the evidence received by me is against that theory. Most doctors say it is simply impossible to voluntarily cause the serratus anterior muscle to fail to operate thus allowing the scapula to assume a winged position. The plaintiff has been seen over a number of years by a number of practitioners and the winged scapula has been consistent during that time. I prefer the evidence of Professor Frank Mastaglia and Professor Alan Skirving to this effect. I think the possibility of the plaintiff being able to voluntarily assume a winged scapula is remote and I do not accept that that is what she is doing.
The lack of precise evidence to demonstrate the cause of a winged scapula is not I think fatal to the plaintiff's claim. Tubemakers Australia Ltd v Fernandez (1976) 50 ALJR 720, per Mason J at 724. Professor Mastaglia considered the plaintiff's injury to be wider, namely an injury to the muscles of the shoulder girdle. He pointed to the lack of pin prick sensation in the left arm pit area. This conforms to the anatomical area of the intercosta‑brachial nerve which has apparently been damaged. Professor George Murrell also suggested the possibility of the injury being due to wider nerve damage. He thought it might be possible the plaintiff had a vulnerability to nerve damage due to the frequent surgery to correct the cleft palate. The nerves controlling the scapula are in the same vicinity as the nerves that supply that part of the head in which the palate is found. Dr Peter Silbert, a neurologist said he thought the plaintiff's shoulder discomfort was due to scapulothoracic dyssynergia, rather that the more specific neurological deficit to the long thoracic nerve.
I accept the plaintiff suffered an injury to his left shoulder as a result of the motor vehicle accident.
The evidence before me is that the shoulder injury and in particular the winging of the scapula will primarily affect the plaintiff's ability to lift her arm above shoulder height and to use it in that position. It is, however, accepted that below that height there will be an effect because of pain in the shoulder region. It was argued on behalf of the plaintiff that the use of her left hand has been affected but I have difficulty in accepting that conclusion. Certainly the use of the limb as a whole and indeed generally the pain will interfere with her concentration but in my view the injury is not quite as bad as she makes out. This assessment is consistent with the evidence of Professors Murrell and Andrew Harper.
The mouth
It was put to the plaintiff that she had suffered no injury at all to her mouth in the accident and that the accident was merely a convenient excuse to have remedial work done to her palate. I do not accept that proposition.
In his written submissions, counsel for the plaintiff expressed outrage at the defendant's claim that the plaintiff was using the motor vehicle accident to have the insurance company pay for treatment. Such emotive explanation is unhelpful. There is nothing outrageous about suggesting a plaintiff does not have a genuine claim. Certainly the defendant should have properly pleaded its defence and was, during the trial, criticised for having failed to do so.
I accept the plaintiff suffered an injury to her mouth. It caused a loosening of the left upper incisor. There was some danger the tooth might be lost but it has not as yet and it is now some 3½ years since the accident. Whilst it is possible it could still be lost, in my view the likelihood of that is simply speculative and there should be no allowance made for the possibility of future dental treatment after this period of time.
The collision loosened a graft in the plaintiff's palate which had to be redone. I accept that is a consequence of the defendant's negligence.
The plaintiff also had a fistula by way of a very narrow (described as a hair's breadth) crack in her palate in the area of the left front incisor going up into her nose. This was not noticed by Dr Matthew Hansen, a plastic surgeon, when he saw the plaintiff shortly after the accident and when he operated in August 1998 to regraft the plaintiff's palate. Dr Hansen says he feels the fistula was caused by the accident but he has failed to give any real explanation as to why it was not apparent at the first consultation if it was accident caused. The plaintiff had had a history of problems with her palate requiring surgical intervention on many occasions. She has failed to satisfy me that the fistula was caused by the accident rather than perhaps being something occurring spontaneously as a result of her many years of palate treatment.
Psychiatric consequences
I accept the plaintiff suffered from an adjustment disorder as a result of the accident. The adjustment disorder is an inability to adjust to the consequences of the trauma of the accident. She received treatment and counselling from a psychologist, Dr Bill Douglas and from a psychiatrist, Dr Roger Paterson. She attended Dr Paterson weekly for about two years and for most of this year on a fortnightly basis. This treatment does not appear to have rectified any problems. On the face of it, it is gross over‑servicing which cannot be justified except in most extreme circumstances. I do not accept the circumstances of this case are extreme and therefore most of the plaintiff's claim with respect to psychiatric treatment should be rejected.
On behalf of the defendant it was argued that the plaintiff was malingering and the psychiatrist, Dr Zelko Mustac, gave evidence to that effect. He said he administered a Test of Memory Malingering "TOMM" the results of which showed she was malingering. Professor Gary Groth‑Marnat and Dr Douglas, psychologists, both strongly rejected Dr Mustac's evidence. They both said, and I accept, that the TOMM test is a test specifically designed to test the validity of a claim of memory loss caused by some neurological event such as a stroke or an injury. The plaintiff does not claim to have suffered any such neurological injury and accordingly the test was an inappropriate test to be conducted. In any event the test had not been conducted as required by its protocol. Dr Mustac administered the test on one occasion where the protocol says it must be administered not less than twice. This further invalidates his conclusions.
On the other hand I accept Dr Mustac's evidence that by 2 February 2000 the plaintiff had recovered from the anxiety state caused by the accident. Dr Mustac described her as a confident, self‑assured person who did not exhibit signs of depression and anxiety.
Credibility
The plaintiff's credibility is very much in issue in this case. When she gave her evidence she did so in what I can only describe as an over‑forceful way. On many occasions her answers were not responsive to the questions but rather giving her own exposition of what ultimately were medical and legal issues to be determined, generally upon expert advice. Such a way of giving evidence is always likely to have an effect on a witness' credibility. In this case, however, I think there is an explanation which would tend to lessen that adverse effect. The plaintiff's husband is a solicitor. He is employed by the plaintiff's solicitors and it seems he has the conduct of the action within the firm. The plaintiff's father was a doctor in South Africa and the plaintiff's sister and brother‑in‑law are doctors practising in Queensland. The plaintiff's father, husband and sister all seem to have become involved directly in this case. Exhibits 11 and 12 are medical reports written by the plaintiff's father and brother‑in‑law to her solicitors. The plaintiff was referred by her sister to various doctors for reports or treatment and the psychiatrist, Dr Paterson, it seems has had a number of telephone conversations with the plaintiff's sister. The plaintiff's husband accompanied her at least on some of the occasions she attended medical practitioners for medico‑legal purposes and seems to have had some direct involvement. All of this has no doubt given the plaintiff a greater degree of knowledge and insight into both legal and medical aspects of her claim. That has had the effect, it seems to me, of unfortunately making her rather more forceful as a witness and might well have had that effect when she saw medical practitioners, particularly those to whom she was sent by the defendant's solicitors.
The plaintiff's case has, I think, taken over her life. Perhaps this is not surprising in view of the family involvement. I find it quite extraordinary that her husband is her solicitor. Lawyers are meant to give objective advice to clients. The plaintiff's husband has at least an indirect interest in the outcome of the litigation. I cannot think it appropriate he should have been involved. Dr Peter Silbert, a neurologist, whose evidence I found most cogent, said after the plaintiff's father became involved her attitude seems to change. Dr Shulman referred the plaintiff to Dr Silbert for treatment. Dr Silbert considered the plaintiff's shoulder problem was not caused by a neurological problem but rather to be muscular and due to pain inhibition. He ultimately used the expression "scapulo‑thoracic dyssynergia". He discussed the matter with the plaintiff's father who disagreed and Dr Silbert was unable to persuade him to accept what appeared to be a fairly obvious diagnostic problem. From then on the plaintiff, instead of improving as Dr Silbert had expected, deteriorated. Deterioration in symptoms is inexplicable. No reason has been advanced for it. Deterioration is in the interest of those seeking damages. Whilst I do not consider the plaintiff is dishonest, in the sense of deliberately feigning her symptoms, the environment of her husband as her solicitor having an interest in increasing the award of damages, and the sympathy rather than objectivity of her father, sister and brother‑in‑law, has, I think, slowed her recovery to the extent that her present symptoms cannot be proved to be attributed to the defendant's negligence.
Loss of earning capacity
I accept the plaintiff has suffered a significant handicap to her obtaining employment as a bookkeeper or the like. She says she would be unable to operate a computer keyboard or a mouse on a computer to do data entry kind of work. I think she exaggerates her difficulties. She has not tried to perform such work. She now says having not done that kind of work for a number of years she would no longer have the confidence to do it. I find that statement somewhat self‑serving. The fact is the plaintiff has made no attempts to obtain work. On the other hand I accept the opinion of Professor Harper who says that the plaintiff presenting as she does with an obvious disability would be in a weak position to obtain work. I therefore accept she has suffered a loss in her capacity to work.
Although it is the capacity to work for which a plaintiff is compensated, the measure of such loss is to be assessed upon the likelihood of the extent to which that capacity would have been exercised. The plaintiff did not work after leaving South Africa. She says she did not do so because she wanted to give the children and her husband the benefit of her working in the home full‑time. This was necessary because the plaintiff's husband was not only working in a solicitor's office, he was also having to study in order to pass the exams which would ultimately qualify him for admission to the Bar. Although no precise dates have been given, it is apparent that the exams were finished in about June 1998, some time at least before the date of the motor vehicle accident. The plaintiff and her husband assert they had intended that she should go back to work when he was admitted to the Bar which was in September. There is no logic in that explanation. The plaintiff and her husband were no doubt relatively financially straightened. For example, the plaintiff since the accident has had a cleaning lady but says she had not a cleaning lady before the accident and one of the reasons advanced was because they could not afford it. Once the plaintiff's husband's exams had been finished, there was no reason on the explanation given by them why she would not have gone to work. She says that her previous work history had demonstrated that she was a very industrious and hardworking person. I do not doubt that that is what had previously occurred. The plaintiff said she worked full‑time for her husband's practice. Frankly I cannot accept that is at all likely and in the absence of any objective evidence I would not accept such a statement. The bookkeeping required for a one man solicitor's office I would have thought would be quite minimal. Even the plaintiff's husband did not seek to say she worked full‑time but indicated she worked the hours necessary to do the work and she was not employed on an hourly basis.
If the plaintiff was as industrious as she claims, I would have thought she would have been anxious to start work because of the financial difficulties that the family would no doubt have faced having recently emigrated to this country. Once the plaintiff's husband's exams were finished, or even before then, I would have thought she would have been making enquiries as to available work with a view to starting promptly. No such enquiries appear to have been made. In the absence of such objective evidence I do not accept the proposition that she intended to start work when the plaintiff's husband was admitted to practice. That is a most convenient explanation for the purposes of a claim for damages.
I have schedules of loss of earning capacity. In view of the rather imprecise evidence I have as to the extent to which the plaintiff would have worked and the extent to which she might have a retained capacity if given sufficient motivation to work, I am unable usefully to apply any such calculations to this aspect.
In my view an award for $50,000 representing the loss of earning capacity including loss of superannuation benefits up to trial (including interest on past loss) and for the future, would be appropriate.
Gratuitous services
The plaintiff claims damages for gratuitous services performed by her husband and other members of the family claiming two hours per day. She claims this on the basis of work she is unable to perform including such tasks as ironing and tasks requiring two hands such as the cleaning of a refrigerator, oven and microwave and moving heavy pots and pans whilst cooking. She has since the accident employed a cleaner to do the heavy cleaning work around the house. I do not accept the plaintiff's level of disability warrants any significant allowance for gratuitous services. I am sure she could cope with far more than she admits to if sufficiently motivated. She is not motivated being, it seems to me, consumed by the litigation. An example of the exaggeration of this type of claim is with respect to screw top jars. It is common experience that when opened for the first time many screw top jars are beyond the strength of some persons and require either a stronger person or some mechanical device to assist. Once opened, jars such as breakfast spreads would hardly require any strength at all to reopen. Making beds and ironing may take longer and involve some discomfort but a motivated person would cope.
Section 3D of the Motor Vehicle (Third Party Insurance) Act 1943 provides no award to be made for gratuitous services unless the amount to be awarded exceeds $5,000. In my view any award for gratuitous services would be trivial and certainly considerably less than that sum and accordingly no award is made.
Household assistance
In my view the plaintiff should recover an allowance for the cleaning lady up to trial and for 12 months thereafter based on the evidence of Dr Paterson who indicated that she should recover mentally from the stresses and strains of the litigation. Once she has done that I am confident she will be able to cope with normal household chores. In my opinion the allowance for the cleaner more than adequately covers any small additional help about the house she obtains from members of the family. The plaintiff claims 6 hours per week at an agreed hourly rate of $12.00, $8,424 is claimed up to trial. I would allow that sum. A further 12 months allowance is 6 x $12.00 x 52 weeks = $3,744.
I allow $12,168 for household assistance.
General damages (non‑pecuniary loss)
Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 restricts the amount to be awarded by way of general damages. Subsections 2 and 3 provide:
"(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded.
(3)The maximum amount of damages that may be awarded for non‑pecuniary loss is amount A, but the maximum amount may be awarded only in a most extreme case."
"Non‑pecuniary loss" is defined as meaning:
"(a)Pain and suffering;
(b)Loss of amenities of life;
(c)Loss of enjoyment of life;
(d)Curtailment of expectation of life; and
(e)Bodily or mental harm."
The section also provides no damages unless a minimum is exceeded and a deduction from the percentage in certain circumstances.
The plaintiff has suffered an injury to her shoulder which has caused her pain and suffering, loss of amenities of life and loss of enjoyment of life. She has suffered an injury to her mouth which whilst for most would be relatively trivial, with her previous history related to her hair lip and her cleft palate has been relatively significant but of short duration. The injury to her mouth in particular has caused her mental harm which continued for some time but now, in my opinion, is of little effect.
I assess her various disabilities at 20 per cent of a most extreme case. Amount A at trial is $232,000, 20 per cent being $46,400 from which the appropriate deduction is $100, so the amount awarded for general damages is $46,300.
Future medical expenses
The plaintiff claims for future medical expenses as set our in par 7 to her Amended Schedule of Damages dated 21 November 2001. For the reasons to which I have already referred I would not allow future medical expenses with respect to her tooth or with respect to psychological damage.
I would not allow any damages for any other future medical expenses. $10,000 is estimated to be the cost of surgery to the shoulder. The plaintiff put it no higher than that she was seriously considering it. Objectively, some 3½ years after the accident I would have thought any treatment reasonably necessary would have already been undertaken. If it has not been undertaken then that is an indication that it is not necessary. This is, after all, not a situation where the injury to the shoulder is a deteriorating one. Whatever has caused the shoulder injury and the winging of the scapular has, it appears, resulted in fairly static symptoms for some years.
Beyond that, the assessment of her disabilities at 20 per cent is on the assumption that there is no change. If she was to have surgery it would, presumably, reduce the level of disability and would therefore reduce the amount of general damages. It seems to me the plaintiff cannot have both that assessment and in addition the cost of rectification.
As at trial the plaintiff was having no treatment with respect to her shoulder. There was no evidence of any medications being taken by her.
At trial she was still going undergoing psychiatric consultations on a regular basis but for the same reason I disallowed most of her claim for psychiatric treatment, I would not allow any claim for psychiatric treatment in the future.
Accordingly I make no allowance for future medical expenses.
Special damages
The plaintiff claims special damages as set out in schedule C to her amended schedule of damages dated 21 November 2001.
1.1 Dr Paterson $9,142
No details have been provided. I take it this is the whole of his account. I consider only about one‑third is justified and would allow $3,000
$3,000.00
1.2 Mr Hansen $1,115
This is for the closure of the fistula. I am not satisfied the fistula was accident caused and accordingly no allowance is made.
1.3 Lifecare Physiotherapy $171.75
This was for hydrotherapy. The plaintiff was having hydrotherapy for his shoulder. I would allow it.
$ 171.75
1.4 Dr Lazar $35
This related to dental treatment and appears to be justified
$ 35.00
1.5 Orthotic Compaction Technology – custom made fibreglass shoulder brace $180
This brace was tried and the trial seems justified
$ 180.00
1.6 Noranda Pharmacy $604.20
This appears to be a balance of the pharmacy account. I do not recall any evidence about it and it is not referred to in comments during submissions. I would not allow it.
1.7 Special damages paid
I would allow the Mount Hospital $761. It appears to be for the initial oral surgery.
$ 761.00
The $50 for shoulder brace should be allowed for reasons stated in item 1.5
$ 50.00
The items for medical expenses for doctors in Sydney and travelling expenses are not, in my opinion justified. The plaintiff was referred to Professor Sonnaberg and to Professor Murrell by her sister. I do not accept anything done by any relation of the plaintiff's family to be objectively justified and would not allow it unless independently warranted. Professor Murrell referred the plaintiff to Dr Hersch for an EMG who referred the plaintiff to Dr Shnier for an MRI. I am not satisfied there is any reason why the defendant ought pay these expenses. I am not satisfied this is a case in which the expertise was not available in this State.
Accordingly medical expenses should be allowed as follows:
1.1 $3,000.00
1.3 $ 171.55
1.4 $ 35.00
1.5 $ 180.00
1.7 $ 810.00
$4,196.55
Travelling expenses
There has been no evidence of travelling expenses incurred for treatment. No doubt some have. But against such expenses the plaintiff has not incurred expenses of going to work. She has been awarded damages for loss of earnings. I make no allowance for travelling expenses.
Interest
Interest should be allowed at a rate of 4 per cent for half the period from the accident to judgment. The total period is about 3½ years so 1 year 9 months interest should be allowed. It should be allowed on the $8,424 paid for household assistance. It is not payable on general damages. I have included an interest component in the award for loss of earning capacity. Interest should not be paid on any part of the special damages. These amounts have either not been paid or have been met by HBF or SGIO Health.
Interest should therefore be allowed on $8,424. $8,424 at 4% for 1 year 9 months = $589.68.
I therefore assess the plaintiff's damages as follows:
Loss of past and future earning capacity including superannuation and interest
$ 50,000.00
Household assistance
$ 12,168.00
General damages
$ 46,300.00
Special damages
$ 4,196.55
Interest
$ 589.68
$113,254.23
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