Theodorou v Harper
[2000] WADC 306
•27 NOVEMBER 2000
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: THEODOROU -v- HARPER [2000] WADC 306
CORAM: COMMISSIONER LEY
HEARD: 28 FEBRUARY 2000
DELIVERED : 27 NOVEMBER 2000
FILE NO/S: CIV 4456 of 1998
BETWEEN: SALLY-ANNE THEODOROU
Plaintiff
AND
SHARON ANNE HARPER
Defendant
Catchwords:
Motor vehicle accident - Assessment of damages - Soft tissue injury to neck - Loss of future earning capacity - Past gratuitous services
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943, s 3C, s 3D
Result:
Damages assessed in the sum of $26,700
Representation:
Counsel:
Plaintiff: Mr T N Cullity
Defendant: Mr P R Momber
Solicitors:
Plaintiff: Kakulas & Kakulas
Defendant: Peter Momber
Case(s) referred to in judgment(s):
Maiward v Doyle [1983] WAR 210
Newman v Nugent (1995) 12 WAR 119
Case(s) also cited:
Nil
COMMISSIONER LEY:
Background
On 19 April 1996 the plaintiff was a passenger in a Nissan Micra, being driven by her husband Vergo Theodorou, which was involved in a head on collision with a vehicle being driven by the defendant. The defendant has admitted that her negligence caused the accident and my only task is to assess the plaintiff's damages.
The impact in the accident was apparently quite severe. The car in which the plaintiff was travelling was written off as a result of the accident.
The plaintiff claims that as a result of the accident, she suffered the following injuries:
(a)A soft tissue injury to her neck;
(b)A soft tissue injury to her thoracic spine;
(c)A post traumatic haematoma in the right upper chest and breast;
(d)A dislocation of her sternum;
(e)A laceration to her left shin;
(f)Bruising to her right shin.
Immediately following the accident, the plaintiff was taken by ambulance to Sir Charles Gairdner Hospital. There she was examined in the emergency department and referred for x-rays of her chest, cervical, thoracic and lumbar spines and her pelvis. None of the x-rays revealed any fractures. She was discharged from hospital that evening.
On 20 April 1996, the plaintiff attended her general practitioner, Dr P M Winterton. She attended on Dr Winterton on many occasions thereafter and he remained involved in her management continuously until the trial.
Between 1 May and 13 June 1996, the plaintiff underwent chiropractic at the Mt Hawthorn Chiropractic Centre. Between 28 June 1996 and 30 April 1997, the plaintiff underwent physiotherapy at the Life Care Physiotherapy Centre.
On 4 September 1996, Dr Winterton referred the plaintiff to Dr G J Gee, a consultant in pain management. Dr Gee did not administer any medical treatment but caused the plaintiff to undergo a supervised physical training programme and some relaxation sessions with a clinical psychologist.
On 11 March 1997, Dr Winterton referred the plaintiff to the Perth Radiological Clinic where she underwent a mammography and ultrasound of her right breast but neither showed any significant abnormality.
On 18 March 1997, Dr Winterton referred the plaintiff to Mr M A Goodman, a general surgeon, for advice as to the treatment of symptoms of which the plaintiff was complaining in her upper right breast, adjacent pectoral muscle and shoulder girdle. However, Mr Goodman recommended no treatment.
On 4 June 1997, the plaintiff was referred by Dr Winterton to Royal Perth (Rehabilitation) Hospital for physiotherapy. He also referred her to the rheumatology clinic of Royal Perth Hospital where she was seen by Dr Sean Thomas, a rheumatology registrar. From 11 August to October 1997 the plaintiff underwent hydrotherapy at Royal Perth (Rehabilitation) Hospital.
On 6 October 1997, the plaintiff was referred to Dr D Walters, a rheumatologist. On 19 November 1997, upon the referral of Dr Walters, she underwent injections into the C5/6, L4/5, and L5/S1 facet joints.
On 28 November 1997, Dr Winterton referred the plaintiff to Dr J S Y Chong, an acupuncturist. Dr Chong administered acupuncture to the plaintiff on five occasions between 28 November and 22 December 1997.
On 25 February 1998, again on the referral of Dr Walters, the plaintiff underwent further facet joint injections, this time into her C2/3 and C3/4 facet joints.
Medical evidence
A large body of medical evidence was admitted by consent. That comprised reports written by Dr Walters, Mr Goodman, Dr Chong and Dr Gee. Also admitted into evidence by consent were a report and medical notes relating to the plaintiff's admission to Sir Charles Gairdner Hospital immediately following the accident.
In a report dated 14 October 1996 the Acting Head of the Emergency Department of the Hospital indicated that when the plaintiff was admitted to hospital at 9.55 am on 19 April 1996, the upper part of her chest was bruised and tender. She was also found to have a laceration over her left shin with bruising over both shins.
The only medical practitioner to give oral evidence for the plaintiff at the trial was Dr Winterton. He produced 16 reports which he had written about the plaintiff between 12 September 1996 and 14 February 2000. He said he had seen her on numerous occasions, commencing on 20 April 1996, the day after the accident.
In his report dated 12 September 1996, he said:
"In this accident (the plaintiff) sustained severe bruising to her right breast, lower abdomen, left loin and left clavicle, a significant soft tissue cervical injury and a laceration to her left shin and bruising to her right shin."
Over the ensuing weeks her bruising has settled and in particular the bruising and haematoma over her right breast has settled, the laceration over the left shin has settled and her abdominal bruising has cleared.
The principal complaint at the present time is soft tissue cervical injury and in particular she has pain over the upper three cervical facets giving her referred pain from her neck to her head. She complains continuously of headaches."
In a report dated 24 January 1997, Dr Winterton recorded again that the plaintiff was continuing to suffer from headaches radiating from the soft tissue of her cervical spine but said that her principal complaints were "chest wall pain and thoraco/lumbar injury". He said that also she still had tenderness superiorly in her right breast.
In a report dated 4 September 1997, Dr Winterton said that the plaintiff was still troubled by continuing pain in the thoraco lumbar spine, chest wall, right breast and left shin.
In a report dated 25 November 1998, Dr Winterton said that the plaintiff's main complaint was pain in her right neck radiating into her head and into her right shoulder as far as the tip of her right acromion. He said that she also had limited neck movement with pain, stiffness and headache.
In a report dated 21 July 1997, Dr Thomas described the plaintiff's original injuries as :
"… Soft tissue injuries to her neck, anterior chest wall, lumbosacral spine … left lower leg and … right breast."
Dr Goodman, in a report dated 22 April 1997, diagnosed the injury to the plaintiff's breast as a post traumatic haematoma and soft tissue injury resulting from a contusion caused by contact with the seatbelt.
The medical evidence, which I accept, establishes that as a result of the accident on 19 April 1996 the plaintiff suffered all the injuries pleaded in the statement of claim, with the exception of the dislocation of the sternum. There was no positive evidence adduced which suggested that the plaintiff had sustained such an injury and when Dr Winterton was asked about it during his examination-in-chief, he said it was "unlikely" that the plaintiff had suffered that injury. On that evidence, I am not prepared to find that she did. However, I find that she suffered the other injuries pleaded.
Plaintiff's pre-accident history
The plaintiff was born in Sydney on 26 February 1957 and so is now 43 years of age.
She first worked in 1974 when employed as a typist by the Commonwealth Bank of Australia in Sydney. She then worked as a receptionist for a short time before marrying on 12 December 1975. She then worked for approximately a year as an orders clerk for a pharmaceutical distributor before she and her husband moved to Perth.
The plaintiff and her husband remained in Perth for a period of about 12 months during part of which time the plaintiff found work as a receptionist. They then moved back to Sydney for 18 months, back to Perth for a little over 12 months and then moved to Victoria in early 1981. Between April 1978 and August 1982 the plaintiff worked as an orders clerk with several large pharmaceutical distributors.
Then, in August 1982, the plaintiff was employed by a pharmaceutical distributor, Fauldings Victoria, as a computer operator and data entry supervisor. She remained there until 1984 when she and her husband moved again to Perth. This time the plaintiff was able to stay with the same company and took up a position with F H Faulding (WA) with increased computer operating responsibilities. In 1985 the plaintiff left Fauldings and took a position as a data processor and computer operator with Hugall & Hoile, WA. In 1987 she left Hugall & Hoile and commenced contract work with a computer company, Comserve Australia, installing computer systems. She ceased work in February 1989, two months before the birth of her first child, Samuel, who was born on 26 April 1989. She did not return to work after Samuel was born and, on 17 November 1994, gave birth to a daughter, Talysha.
Unfortunately, both Samuel and Talysha suffer from a condition called congenital adrenal hyperplasia, which prevents their bodies from producing cortisone naturally. As a result, they are extremely vulnerable to infections and are obliged to take medication three times a day. If they do not take the medication and succumb to an infection they may require hospitalisation.
In view of her children's condition, the plaintiff chose, quite reasonably, in my view, not to look for work until Talysha started full time school. That was this year, when Talysha entered Year 1 at Aranmore Catholic Primary School.
Plaintiff's post-accident history
The plaintiff said that her main problems since the accident have been headaches, associated with blurred vision, neck and right shoulder and arm pain, pain in her chest and right breast, pain in her middle and low back and soreness in her left shin.
The plaintiff said that, in the first few weeks after the accident, she would get headaches three or four times a week with blurred vision which would last for several hours. She said that continued for some 16 months after the accident but then the headaches occurred with less frequency and the blurred vision abated.
In relation to the pain in her neck, right shoulder and arm, the plaintiff said that began at the time of the accident as neck pain only, but then radiated into her right shoulder. She said housework made the pain worse. Immediately following the accident the pain remained fairly constant and, about a year after the accident, was radiating into her right arm.
The plaintiff also gave evidence about symptoms in her chest and right breast. She said that the pain was severe at first and was aggravated when she used her right arm. She said that the severity of the pain gradually decreased.
The plaintiff also said that she suffered pain in her upper and lower back following the accident. She said that also decreased to the point where it was a dull ache.
The medical evidence generally supports the plaintiff in relation to her symptoms following the accident. All of the doctors say that the symptoms of which the plaintiff complained following the accident were consistent with her having suffered injuries such as those pleaded (with the exception of the alleged dislocation of the sternum).
Plaintiff's present condition
The plaintiff said that she still experienced pain in her neck which radiated into her right shoulder and arm. She said that she was again able to do housework but she did it much more slowly than she had done prior to the accident.
She also said that she was still experiencing a headache once per week, mainly associated with lifting or bending. In addition, she said that she continued to suffer pain in her right breast and right collarbone, near her sternum and in her upper and lower back.
Video surveillance film
The defendant introduced into evidence a video surveillance film taken, according to the film, on 20, 27 and 28 January 2000.
Film taken on 20 January 2000 showed the plaintiff in the car park of a shopping centre with a quantity of shopping. It showed her carrying apparently heavy shopping bags with her right hand and reaching up with her right hand to pull closed the boot of her motor vehicle. In the film on 27 January 2000, she was shown again standing in the car park of a shopping centre and holding a shopping bag in her right hand while listening to a friend talking. Then she was seen sitting in a coffee shop for an extended period. The film of 28 February 2000 showed her carrying an implement with a long handle for a short distance under her right arm.
Prior to the trial the film was shown to both Dr Winterton and Mr F G Bell, an orthopaedic surgeon to whom the plaintiff had been referred by the defendant's insurer. Dr Winterton was unimpressed by the film. In his evidence‑in‑chief, he said that the film had not caused him to change his opinion about the plaintiff's condition. I took him to mean that he accepted the plaintiff's complaints of ongoing symptoms particularly in her neck, right shoulder and right arm, as genuine and considered that they continued to restrict her in her everyday life and would for some time in the future.
Mr Bell was rather more influenced by the film. In a report he gave on 22 February 2000, he said:
"Film of the 28 February 2000 (sic) shows a short clip. She appears to be carrying an electric polisher in her right arm. This being apparently of considerable weight.
My assessment of that activity is that she shows no evidence of significant neck pain, shoulder or arm pain and no evidence of low back pain. In short in the findings of this nature I would find it difficult to support the opinions of her having any significant residual disability in neck, shoulder, right arm or lower back."
In her evidence-in-chief, the plaintiff did not say anything about the long handled implement she had been filmed carrying on 28 January 2000. Nor was she cross-examined about it. However, in re‑examination, she said that one of the clips in the film showed her carrying a "whipper snipper" which is a long handled garden implement powered by a small motor which is used to cut weeds and tall grass. The plaintiff said that the whipper snipper she was seen carrying in the film was made of plastic and weighed about a kilogram.
As the film of 28 January 2000 was the only one in which the plaintiff was shown carrying anything resembling a whipper snipper, I infer that she was referring to that film when she said that one of the "clips" showed her carrying a whipper snipper. As a result, her evidence conflicts with the evidence of Mr Bell who thought that she had been carrying "an electric polisher" which was of "considerable weight". Oddly enough, Mr Bell was not cross-examined about those comments. It was not even put to him that the plaintiff had given evidence that she had been carrying a whipper snipper which weighed about a kilogram and not an electric polisher "of considerable weight".
Notwithstanding that, I am prepared to accept the plaintiff's evidence in preference to that of Mr Bell and find that it was a whipper snipper of relatively little weight that the plaintiff was shown to be carrying in the film of 28 January 2000. I do that on the basis of my own observation of the film and the fact that the plaintiff's evidence about the matter was direct. I consider that Mr Bell's impression, formed after seeing the film once, was mistaken.
That matter is not without significance as Mr Bell's view of the present severity of the plaintiff's symptoms and her prognosis seems to have been affected by his impression that she was able to carry something of considerable weight in her right arm without apparent difficulty. If he had known that the implement she was carrying was made of plastic and only weighed a kilogram, he may not have expressed the view he did.
In my view there is nothing in the film which would indicate that the plaintiff was not, at that time and at the date of the trial, experiencing the symptoms of which she complained or that the plaintiff was exaggerating her symptoms. Neither her evidence about those matters nor her credibility generally was seriously challenged by the defendant during cross-examination. Accordingly, I accept the plaintiff's evidence in that regard.
General damages
The plaintiff's claim is subject to the provisions of s 3A to s 3E of Motor Vehicle (Third Party Insurance) Act 1943 ("the Act"). In particular, s 3C imposes limitations upon an award of damages for non‑pecuniary loss and it applies to the present case.
Section 3C(2) of the Act provides:
"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."
Section 3C(3) provides:
"The maximum amount of damages that may be awarded for non-pecuniary loss is Amount A, but the maximum may be awarded only in a most extreme case."
Section 3C(1) provides that Amount A is the amount recalculated under s 3C(8) and s 3C(9). That recalculated amount as gazetted on 19 May 2000 is $225,000.
In view of:
(a)the apparent severity of the accident;
(b)the fact that, since the accident, the plaintiff has suffered pain in her neck radiating into her right shoulder and arm together with headaches, pain in her right breast and collarbone and pain in her upper and lower back;
(c)the fact that she will continue to suffer similar pain, albeit decreasingly, for some time into the future;
(d)the difficulty that her symptoms have caused her to experience in coping with her unusually demanding family situation
I would assess the plaintiff's situation as being no more than 12 per cent of a most extreme case. On that assessment, she would be entitled to $27,000.
However, pursuant to s 3C(5) of the Act, from that amount must be deducted Amount B. As gazetted on 19 May 2000, Amount B is $11,000.
Accordingly, the amount I allow for the plaintiff's non-pecuniary loss of amenities is $16,000.
Loss of earning capacity
I have already outlined the plaintiff's pre-accident work history and have explained the reasons why she has remained out of the workforce until this year.
The plaintiff claims that, notwithstanding her considerable experience as a computer and data entry operator between 1982 and 1989, her current symptoms prevent her from returning to that type of work because she would be unable to sit for long periods in front of a computer keyboard, keying in information, without her right shoulder and arm becoming extremely painful. She thinks that when sitting at a computer keyboard she would be obliged to use her right arm continually for finer movements and that would aggravate the symptoms she experiences in her right arm. The plaintiff has not actually worked on a computer keyboard since 1989. However, on the basis of the pain she experiences when performing other activities, such as cooking, she feels sure working at a computer would have that outcome.
The plaintiff gave evidence that because of her belief that she would be unable to work as a computer keyboard operator, she thought that she might attempt to find work as a teacher's aid or set up her own sewing business. She said that she would do either of those things some time this year. She said she thought that she could manage sewing, even commercially, because she sews left handed and that would not cause problems with her right arm.
Dr Winterton supported her to some extent. In a report dated 14 February 2000, he said:
"Prior to having her first child Sally-Anne worked as a data entry person entering data on the computer. You specifically asked whether Sally-Anne would be able to resume such duties if a job would be available. I think she would have difficulty lasting eight hours a day sitting at a screen in a fixed position doing data entry."
That of course only deals with the situation which would exist if the plaintiff worked as a computer operator full time. It does not exclude the capacity to do that type of work on a part time basis, if it were available.
In a final report dated 24 October 1998, given after he had seen the plaintiff for the last time, Mr Bell said he accepted the plaintiff's statement that she was not able to return to computer work at that time. He did think at that time she could do part time sewing. I have already quoted the view Mr Bell expressed in his report dated 22 February 2000, after seeing the video surveillance film. However, I have also observed that his view may have been different if he had not believed that part of the film showed the plaintiff carrying a heavy electric polisher in her right arm, which belief I have found to be mistaken. When Mr Bell gave evidence at the trial, the following exchange occurred:
The Commissioner: "Mr Bell, just before you go, Mr Cullity took you to the report that you made in October 1998, which I take it is the last time you saw this woman?…… Yes.
You haven't seen her again since then. You just had a look at the video?…. No, that's right.
You say there, 'I would accept that Mrs Theodorou's statement that she is unable to return to computer work yet.' Why is that? Why do you think then that she could not return to computer work?…. I made that assessment on what she told me, that she could not hold a fixed position, which is a common complaint.
Would that still be the case?…. I don't know. I would have to re-examine her.
What you saw in the video: does that help you decide whether you would still accept a statement of that sort if she made it now?…. I don't know that you could draw that conclusion because she was moving her head a lot, you know, looking around in the back of the car and so on, but at the stage when I last saw her she did not have much limitation of movement of her neck, which suggests that a lot of it had passed off.
She told me that when she gave evidence yesterday that she still believes that she is in the same position. In other words, she made a similar statement to me yesterday as the one she made to you back in 1998, that she does not think that she could handle sitting at a computer all day or eight hours, I suppose? …. There is nothing like trying."
In her evidence, the plaintiff conceded that she had not attempted to go back to computer work. She said that she could not do so at home because she could not afford a computer.
On balance, I am prepared to accept that the injuries which the plaintiff suffered in the accident and the residual disabilities with which she has been left have led to some reduction in her capacity to earn income, particularly as a data processor or computer operator. That has not been productive of any past economic loss because she said that she would not have gone back to work in any event until the second half of this year when her younger child started school full time.
The question is then whether the plaintiff has suffered any loss of future earning capacity as a result of her disability. I think she has. It seems clear that she would have gone back to computer work if she could. Clearly she cannot presently do that type of work full time and it may some years before she can. However, it might be possible for her to do the work part time. She is also in a position to further mitigate her loss by doing sewing commercially.
Taking those matters into account, I would award the plaintiff a global amount of $10,000 to compensate her for her loss of future earning capacity.
Gratuitous services
The plaintiff claimed an amount of $8,826 for domestic services provided by her mother, Patsy Rosina Hanshaw. Mrs Hanshaw gave evidence. She said that, prior to the accident, she had not assisted the plaintiff with any of her domestic work. However, after the accident:
(a)for a period of approximately 8 months, she had spent at least two hours per day, every day of the week, cleaning and tidying the plaintiff's house;
(b)for a period of 6 months from January 1997, she had spent an hour every second day assisting the plaintiff with cleaning and tidying her house;
(c)From the middle of 1997 to the date of trial, she had spent about an hour per week assisting the plaintiff with cleaning and tidying her house.
By my calculations, that is a total of approximately 690 hours. During the course of the plaintiff's address, I was informed that the parties had agreed that the appropriate rate for the gratuitous services was $12 per hour. On those figures, the plaintiff's claim would reduce to $8,280.
Damages for gratuitous services are awarded to compensate a plaintiff for the diminution in her capacity to look after herself, usually by being unable to provide nursing or household services for her own needs: Newman v Nugent (1995) 12 WAR 119 at 129 per Ipp J. Such damages are not to be assessed by reference to any services the plaintiff would otherwise have provided for other members of the family. Those services are irrelevant to the loss suffered by the plaintiff: Maiward v Doyle [1983] WAR 210.
At the time of the accident, the plaintiff was living with her husband and two children, who were then about 7 years and 18 months of age. The plaintiff and her husband separated on 8 August 1999 but the children stayed with the plaintiff. Therefore, for the greater part of the period following the accident, the plaintiff's household comprised herself, her husband and the two children. In her oral evidence, she said that, prior to the accident, she had done "everything" in looking after the children and running the home.
It must therefore have been the case that some considerable part of the household work done by the plaintiff prior to the accident and with which her mother assisted after the accident was provided to the plaintiff's husband and her two children. That must have been particularly the case in the time immediately following the accident, when the children were still quite small.
For those reasons, I do not believe that the plaintiff is entitled to damages for the full amount of the gratuitous services provided by her mother. In fact, I consider that her entitlement is less than half of the total value of the gratuitous services provided.
Awards of gratuitous services are subject to the provisions of s 3D of the Act. That section provides relevantly:
"(1)This section limits the damages that may be awarded for the value of gratuitous services of a domestic nature or gratuitous services relating to nursing and attendance that have been or are to be provided to the person in whose favour the award is made by a member of the same household or family as the person.
(2)No damages are to be awarded for the value of the services if the services would have been or would be provided to the person even if the person had not suffered the bodily injury.
…
(5)If the services are provided or to be provided for less than 40 hours per week, the amount of damages awarded for their value is not to exceed the amount calculated at an hourly rate of one-fortieth of the weekly rate that would be applicable under subsection (3) if the services were provided or to be provided for not less than 40 hours per week.
(6)If the amount of damages that may be awarded under subsection …(5) is Amount D or less, no damages are to be awarded for the value of the services provided or to be provided."
The gratuitous services in this case were provided to the plaintiff by her mother who was clearly a member of the same family for the purposes of s 3D(1). Therefore, the section applies to this case.
As the hourly rate was agreed between the parties, it is not necessary for me to have regard to s 3D(5).
Amount D is gazetted each year. It was last gazetted on 19 May 2000 in the amount of $5,000.
I have already expressed the view that the allowance to make to the plaintiff for gratuitous services provided by her mother should be less than half the total value of those services ie less than $4,140. In those circumstances, the amount which may be awarded is less than Amount D and no award will be made.
Special damages
I was told that special damages were agreed at $700.
Summary
Accordingly, I award the plaintiff total damages of $26,700 comprised as follows:
Non-pecuniary loss
$16,000
Loss of earning capacity
$10,000
Special damages
$ 700
Total
$26,700
0