Sparrow v Gilbert
[2008] WADC 59
•2 MAY 2008
SPARROW -v- GILBERT [2008] WADC 59
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WADC 59 | |
| Case No: | CIV:30/2007 | 8 APRIL 2008 | |
| Coram: | EATON DCJ | 2/05/08 | |
| PERTH | |||
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Plaintiff entitled to damages in the sum of $22,315 | ||
| PDF Version |
| Parties: | DENISE SPARROW KATIE GILBERT |
Catchwords: | Torts Motor vehicle accident Personal injuries Assessment of damages Soft tissue injuries |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1943, s 3C |
Case References: | Insurance Commission of Western Australia v Weatherall [2007] WASCA 264 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
KATIE GILBERT
Defendant
Catchwords:
Torts - Motor vehicle accident - Personal injuries - Assessment of damages - Soft tissue injuries
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943, s 3C
Result:
Plaintiff entitled to damages in the sum of $22,315
(Page 2)
Representation:
Counsel:
Plaintiff : Mr K S Pratt
Defendant : Mr P R Momber
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : Peter Momber
Case(s) referred to in judgment(s):
Insurance Commission of Western Australia v Weatherall [2007] WASCA 264
(Page 3)
1 EATON DCJ: On 10 January 2007 the plaintiff filed a writ of summons in this Court commencing an action for damages against the defendant. The writ was accompanied by a statement of claim which pleaded, inter alia, that the plaintiff had been involved in a motor vehicle accident on 7 January 2006. She was the driver of a stationary motor vehicle on Marmion Avenue at the intersection of Marmion Avenue and Ocean Reef Road when a motor vehicle driven by the defendant collided with the rear of her vehicle. She alleged that the defendant had driven negligently and that the defendant's negligence resulted in the accident in which she suffered injuries, loss, pain, discomfort, loss of earnings and future medical and other expenses. The plaintiff particularised her injuries and symptoms, her medical treatment and her continuing and permanent disabilities alleged to have been suffered as a result of the accident. She made claim for special damages, loss of earnings and voluntary loss.
2 The defendant entered an appearance on 29 January 2007 and on that day filed a defence admitting the alleged accident and that it was caused by her negligence. The defendant denied that the plaintiff had, as a result of the accident, suffered injuries, loss, pain, discomfort, loss of earnings and future medical and other expenses. The defendant denied that the plaintiff was entitled to the relief claimed in damages or to any relief at all.
3 The pleadings of the parties remained unaltered during the course of the action.
4 The action came on for trial before me on 8 April 2008. The plaintiff gave evidence and called her general practitioner, Dr J J McNeilly. The plaintiff's book of medical reports comprising the reports of Dr McNeilly, Mr Mark Frith, a physiotherapist, Mr Peter Watson, a neurosurgeon, Mr J K Ker, a consultant physician in rehabilitation medicine and Dr Chris Loubser, became Exhibit 3. She also relied upon documents tendered in the form of a schedule of travel expenses (Exhibit 1) and a book of documents relating to her income with a supplementary book of additional material (Exhibit 2).
5 The defendant called Dr Michael Bowles, an occupational physician. His reports, in booklet form, became Exhibit 4 in the trial.
6 The plaintiff is 50 years old. She was educated at Karrinyup Primary School and Scarborough High School to year 10. Upon leaving school she obtained employment with Woolworths Ltd at a store in Scarborough Beach Road.
(Page 4)
7 On 7 January 2006, a few weeks before her 48th birthday, the plaintiff was taking her daughter to work on a Saturday morning, driving south on Marmion Avenue. She was then going to drive to the Big W store at Mirrabooka to collect her personal belongings because she had undertaken a new project for Woolworths Ltd involving the installation of a new cash register system at the company's stores and the training of staff in the use of that system. The plaintiff stopped her vehicle at a red light at the intersection of Marmion Avenue and Ocean Reef Road. She was observing the progress of a vehicle immediately behind her in the rear view mirror. It became apparent that the vehicle would not stop in time to avoid colliding with the plaintiff's vehicle. The plaintiff braced herself for the impact, holding onto the steering wheel with one hand and reaching out to restrain her daughter, in the passenger's seat beside her, with the other.
8 The vehicle being driven by the defendant did collide with the rear of the plaintiff's stationary vehicle, as pleaded. The plaintiff alighted and went to the defendant's vehicle to find that the defendant was a young girl in tears concerned, in particular, that her father, whose car she was driving, would be angry with her. The plaintiff herself was shaken and almost immediately aware of a headache. The defendant was rummaging in her car looking for her "P" plates. The plaintiff told her not to be concerned about that because the more important concern was to shift their two vehicles from the carriageway and to exchange information. They did so. The defendant rang her father and the plaintiff waited with the defendant until he arrived at the scene. Fortuitously a workmate of the plaintiff's daughter came by and was able to give the daughter a lift to her work at Big W at Whitfords. That enabled the plaintiff to remain with the defendant.
9 Both vehicles were damaged in the collision. The defendant's vehicle, according to the plaintiff, incurred more damage than did hers. Her vehicle was damaged in the rear, particularly the rear bumper. That damage was repaired at a cost of $2,041.20 including GST. The plaintiff described the defendant's vehicle as being "quite smashed at the front" with the bonnet and grille pushed back.
10 After meeting with the defendant's father and exchanging information the plaintiff continued on her way to the Big W store at Mirrabooka. She said that she was still, at the store, upset and shaken. She left before lunch and returned home. During the day more symptoms developed. In particular her neck became sore, the headache continued
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- and there was a feeling of numbness to the left hand side of her face. She took Panadol for the headache.
11 On Monday 9 January 2006 the plaintiff attended at the Beaumaris Family Practice to see her general practitioner, Dr McNeilly. He was not available and she was seen by Dr Chris Loubser. He noted that she had tenderness in the neck at L2-4, tenderness with spasm in the neck posteriorly, tenderness in the supra-spinatus trapezius and a reduced range of movement with pain. He thought that the plaintiff had suffered a soft tissue injury known as "whiplash". He recommended physiotherapy, analgesics for the pain and further review.
12 On the same day the plaintiff went to work for Woolworths undertaking the project, as part of a team, installing cash registers at stores and setting up training regimes. In that occupation she worked, with some flexibility, between 40 and 60 hours per week. For the first two to three months she suffered from headaches for most of the time and a stiff neck upon waking in the morning. Her back, she said, was stiff and sore but she still went to work because she was the only person in Western Australia who could fulfil her role in the project having undertaken training in Queensland for that purpose. She was assisted in her housework by her three daughters. At the time of trial the eldest was 23 years old and the youngest was 15 years old. The latter is still at school. The older daughters were both living at home but working. The plaintiff's husband was also employed full-time, working 12 hour days, five days a week.
13 In accordance with the recommendation of Dr Loubser the plaintiff began physiotherapy attending two or three times per week. She, because of the flexibility of her work commitments, managed to arrange her physiotherapy appointments without interfering with those commitments.
14 The plaintiff attended Dr McNeilly on 25 January 2006. He reported that she was then suffering from soft tissue injuries to her lower back and neck musculature, primarily in the area of the right trapezius and right para-cervical muscles. He noted that she complained of significant pains in the neck with associated headaches and in the lower back. He noted that she was attending physiotherapy twice a week and taking an analgesic (Panadol) rarely and an anti-inflammatory (Mobic) daily.
15 The project involving the installation of cash registers and training came to an end in September/October 2006. Woolworths offered the plaintiff two in-store managerial positions. Both, she said, would have
(Page 6)
- involved unloading pallets with a level of physical work with which, she thought, she could not cope. In consequence, she gave two weeks' notice and took a job with a store called "Kitchen Witch" in Hay Street, Subiaco. Her symptoms were improving although she still had difficulty in lifting. She still experienced problems with her back and, as she said, had good days and bad days.
16 The plaintiff eventually left her employment at Kitchen Witch, in large part because, there being very few customers, the job was often boring. She was anxious to use her skills as an administrator in an office environment rather than in a shop. With that in mind she undertook, but did not complete, a computer course. Eventually, in what proved to be a poor choice, she took employment with Midland Brick Ltd at that company's call centre. The work was sedentary, involving taking telephone calls from the public whilst sitting in a cubical for long hours, wearing headphones. She soon found that it was not to her liking at all and left after three weeks. The long hours at a desk had exacerbated her pain.
17 The plaintiff then took a job more suited to her experience and skills, this time as a manager/coordinator at the Bunnings store at Whitfords. She continues to work there. The job did, at the outset, involve some physical work and lifting. That aspect almost led to her resignation. It seems that Bunnings recognised her value as an employee and stripped from her duties some of the physical aspects which made her work more difficult and led to pain. Her work presently involves liaising with trade customers and administration. She still, she says, has some degree of pain and continues to suffer headaches. She continues to use both Mersyndol to sleep at night and Panadol from time to time although, she says, she is not given to taking tablets and would rather avoid such medications.
18 On 5 July 2006 Dr McNeilly reported that he had again seen the plaintiff on 21 March and 15 May. He said that she was "perhaps 50 per cent better since the previous report in early March 2006". Her treatment, as before, continued. The doctor recommended continuing exercise and hydrotherapy. His expectation was that the plaintiff would make a full recovery but that it was some time away.
19 Prior to that report the plaintiff had instructed solicitors with respect to the consequences of the accident. She was referred, for a medico-legal report, to Mr Peter Watson, a neurosurgeon, who she saw on 3 April 2006. He reported to her solicitors that she had suffered soft tissue and ligamentous injuries to the cervical spine with symptoms, being neck
(Page 7)
- pain, shoulder pains and headache, all worse on the right. Her injury and symptoms were caused by the motor vehicle accident on 7 January 2006. He thought she should consider a swimming programme, recommending the freestyle stroke, with three half hour sessions per week and with physiotherapy being "gently tapered off". He expected that the plaintiff would see a continuing gradual improvement over a six to 12 month period. He noted, finally, that the plaintiff seemed to cope with her work "reasonably well".
20 On 12 November 2007 Mr Watson again reported to the plaintiff's solicitors, having reviewed her on that day. He noted that there had been a definite improvement in her condition since his earlier report. The intensity of her symptoms had diminished and the symptoms involving tingling and numbness in the face had resolved. The degree of symptoms radiating in the arm had also improved. He expected that her condition would further improve over the coming 12 to 18 months and that she would require treatment in the form of conservative measures such as exercise, strengthening and swimming. He concluded by saying that, having regard to her injuries and limitations, her then current full-time employment at Bunnings appeared "quite satisfactory".
21 At the request of the plaintiff's solicitors she was seen by Mr J K Ker, a consultant physician in rehabilitation medicine on 23 April 2007. She was then still working at Kitchen Witch. He reported that her work activities were not restricted by her injuries and symptoms but that she was aware of those problems when involved in, for example, unpacking and displaying heavy stock items which activity might involve carrying and lifting. He concluded that the plaintiff continued to function in an entirely competitive manner and that, in his expectation, she would have no loss of competitive capacity. Nor, he said, was there any shortening of her working life by reason of her injuries.
22 On 30 August 2006 Mr Mark Frith, the physiotherapist treating the plaintiff reported that she had, in his opinion, a number of positive indicators including moderate pain level, minimal use of analgesics, good motivation and gainful employment. He had recommended that the plaintiff commence a three month gymnasium-based exercise programme supervised and progressed fortnightly. The plaintiff did undertake that programme. Mr Frith attended at the gymnasium to assist with the programme from time to time.
23 In evidence the plaintiff said that she still experienced pain. She had, she said, stopped going to the gymnasium and lifting weights. She had
(Page 8)
- acquired, at the suggestion of the physiotherapist, some exercise equipment for home including stretching elastic bands, an exercise ball and 2 kilogram dumbbells. She admitted that she was currently not doing as much exercise as she perhaps should do. In cross-examination the plaintiff agreed that her symptoms had improved over time. She did still have some bad days. In managing what appeared to be a busy household she said that she arranged her household duties over several days to lessen the impact upon her symptoms. She was assisted in that regard by her daughters and, perhaps, her husband. She fully and readily accepted that she had not lost any time off work as a result of the injuries suffered in the motor vehicle accident or the symptoms thereof.
24 The plaintiff said that in her current position at Bunnings she supervises 12 employees. She likes her job in management and appears to be good at it. She continues to undergo physiotherapy, travelling to and from the Beaumaris Centre, doing so notwithstanding that it was no longer being paid for by the defendant's insurer.
25 The final report of Dr McNeilly is dated 22 October 2007. He then noted that the plaintiff had resumed physiotherapy at her own expense and that her condition had improved although, when he saw her in October 2007, she had not attended a physiotherapist for some two months but was undertaking exercise at home everyday. He was still confident that she would make a full recovery. He didn't specifically recommend continued physiotherapy.
26 In evidence before me Dr McNeilly said that he continues to see the plaintiff every two or three months and that it was necessary that that regime continued for at least one year and perhaps for two years at the maximum. He thought that she had not, at the time of giving evidence, made a full recovery and that she might do so over a period of five years. In general terms, he said, she had improved but had her "ups and downs". He described her as "stoic" and said that she had "toughed it out". Her history suggested that she suffered from occasional flare ups of her symptoms which were ameliorated by physiotherapy from time to time.
27 Dr Bowles, called by the defendant, confirmed that the plaintiff's injury was, as he described it, a "whiplash associated disorder". The plaintiff suffered mechanical neck symptoms of pain made worse with certain activities. He was of the view that specific medical treatment would not be required. In cross-examination he described the plaintiff as being "very straight forward". He expected that she would not suffer any functional impairment in the form of long term restriction of movement.
(Page 9)
- He also thought that there was scope for improvement of her situation over a period of about five years.
28 The plaintiff impressed me as an honest and hardworking person dedicated both to her job and family. There seems to be little doubt that her injuries are to the soft tissue. She suffered no broken bones, cuts or bruising. Her reliance on medication has been, in the circumstances, minimal. She has not been required to undertake any invasive therapy and has complied, by and large, with the physical regimes suggested for her. I accept the plaintiff's description of her symptoms currently and in the past. I accept that she has needed and will continue to need physiotherapy from time to time as part of an appropriate management regime. I accept also that the plaintiff, in her current situation, should appropriately continue to consult with her general practitioner about four times a year for the next two years. Her physiotherapy needs may be more frequent. She will continue to rely, from time to time, on medication such as Mersyndol and Panadol but given her attitude of reluctance and her ability to manage her symptoms in a gradually improving context I expect that her reliance on such medications will taper off and ultimately disappear within the next one to two years.
29 So far as her social life is concerned the plaintiff said that she didn't play sport before the motor vehicle accident and doesn't currently. She did walk but doesn't walk as much now because of the symptoms. The plaintiff and her husband now live in Brighton, having moved some time ago from Kinross, in a house with four bedrooms, two bathrooms, a pool and a spa. She continues to use both the pool and spa. She can't do breaststroke because it hurts to hold her head up but she can undertake freestyle without too much difficulty.
30 Prior to the accident the plaintiff had been involved in two motor vehicle accidents, one in 2005 and the other many years before. She suffered no injury in 2005. The injuries in the much earlier accident resolved and have no relevance to her current situation. She did, in the past, suffer from migraines. They ceased well before the motor vehicle accident on 7 January 2006.
31 In cross-examination the plaintiff accepted that in December 2006 she had fallen down stairs at her sister's house at Dunsborough while on holidays there. She was taken to the Busselton Hospital with a sprained ankle. There she was provided with crutches. There is, on the evidence before me, no suggestion that that particular event has had any impact
(Page 10)
- upon her injury and symptoms resultant upon the motor vehicle accident of 6 January 2006.
32 Counsel for the plaintiff, in opening her case, told me that she seeks damages in the form of general damages and, in addition, damages for loss of earning capacity. Past special damages have been agreed by the parties. There is, said counsel for the plaintiff, a claim for future medical expenses and associated travelling expenses. The parties have agreed a rate of 30 cent per kilometre with regard to the latter.
33 The plaintiff's expectation is that she will work for another 10 years retiring in her 60th year at a time when her youngest daughter will be 25 years old. By then, I expect, both the plaintiff and her husband might be contemplating comfortable retirement with the children having left the family home. The prognosis for her injury and symptoms is not for any deterioration but rather for improvement and, perhaps, resolution in the longer term. My assessment is that the plaintiff is a valued employee and that she will have little difficulty in maintaining, if she so desires, her current employment or employment in a similar managerial position at the same level of remuneration or at an improved level. There is no evidence to suggest that the plaintiff has suffered any economic loss or that she will do so in the future. I appreciate that the claim is not for loss of money per se but rather for loss of earning capacity. I do not, however, discern that there is any evidence to support such a claim. Counsel for the plaintiff in his final remarks suggested that I should make a modest award for economic loss, perhaps as part of an award of general damages. There must be an evidentiary basis for such an award. In the plaintiff's case there is not.
34 So far as general damages are concerned, I must have regard to the provisions of the Motor Vehicle (Third Party Insurance) Act 1943 and, in particular, those provisions which relate to restrictions on damages for non-pecuniary loss. Section 3C of the Act provides that 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. The maximum amount presently is $292,000. Section 3C(3) provides that the maximum amount of damages that may be awarded for non-pecuniary loss may only be awarded in a most extreme case. Section 3C(4) provides that if the amount for non-pecuniary loss is assessed to be amount B, as determined from time to time, or less, no damages are to be awarded for non-pecuniary loss. Amount B is presently $14,500. Accordingly, in the plaintiff's case, I must assess her damages for non-pecuniary loss as a
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- proportion of the maximum amount given that the maximum amount maybe awarded only in a most extreme case.
35 In Insurance Commission ofWestern Australia v Weatherall [2007] WASCA 264 the court noted that the expression "non-pecuniary loss" is defined to mean pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. The court went on to say that the expression "a most extreme case" refers to a class of cases rather than to a case "at the apex of the gradation of injuries".
36 It is now just over two years since the motor vehicle accident giving rise to the problems the subject of the plaintiff's claim. She has, in the words of her general practitioner, "toughed it out". That is to her credit. She has, however, experienced persistent pain and difficulties, albeit with gradual improvement since the initial onset. The expectation is that her problems will resolve completely within a period of five years if not sooner. This is a case where the symptoms of soft tissue injury have persisted perhaps longer than one would normally expect. They have not required invasive therapy. They have, however, required fairly persistent self-management. Overall, the evidence suggests that she has been diligent in that regard. Along with pain and suffering, which has diminished over time and will continue to do so, the plaintiff has been required to adhere to a regime which has eroded her own personal time because of her determination to maintain her commitments to work and family. She has managed that but the sacrifice made in doing so is itself to be recognised. Having regard to all of the relevant circumstances I consider that an appropriate proportion of a most extreme case is 12 per cent. I therefore award, having regard to the current provisions relating to non-pecuniary loss, general damages in the sum of $20,540.
37 So far as medication is concerned, the plaintiff indicated that Panadol was required from time to time for use by the household generally. She purchases Mersyndol at the rate of one pack per month costing $14 per pack. I am prepared to allow an award of $250 for future medication expenses.
38 There is, in my view, a need for the plaintiff to continue to see her general practitioner and physiotherapist approximately four times a year in the coming year and approximately twice in the year thereafter in relation to the consequences of the motor vehicle accident. She does so presently at a net cost of $35 per visit to the doctor, after the Medicare rebate. Her evidence as to the future need for and the cost of
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- physiotherapy was vague. I allow the sum of $500 for those visits in the future.
39 There is a claim for past and future travelling expenses. There is a schedule of past travelling expenses (Exhibit 1). The schedule incorporates travelling to and from the Beaumaris Family Practice, presumably to see the plaintiff's general practitioner. It also includes attendances upon a Mr Peter Owens, physiotherapist at Beaumaris and attendances upon the Prindiville Avenue Physiotherapy Clinic. Finally, there is a claim for two attendances upon Dr Bowles at Osborne Park, those attendances required by the defendant's insurer. The total claim is for 2,445.44 kilometres for past travelling. There is agreement that any award for travelling expenses should be based upon a rate of 30 cents per kilometre. I accept that the plaintiff has chosen to attend a physiotherapist from time to time in circumstances where she may well have attended a physiotherapist whose practice was closer to her place of residence. I accept also that there must be some degree of freedom of choice allowed provided that the impact of that choice is not unreasonable so far as the question of distance is concerned. I am prepared to allow, for past travelling expenses, an amount of $725. Given the diminishing need for both attendances upon the plaintiff's general practitioner and a physiotherapist I will allow a further $300 for future travelling expenses.
40 The plaintiff's claim for damages for voluntary services was not pursued.
41 In summary therefore I propose that there be judgment for the plaintiff in the sum of $22,315 comprising the following components:
General damages $20,540
Future medication expenses $250
Future attendances upon both a general practitioner
and physiotherapist $500
Past travelling expenses $725
Future travelling expenses $300
Total $22,315
0
1
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