| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : TINK -v- BROPHO [2003] WADC 188 CORAM : MULLER DCJ HEARD : 31 JULY & 1 AUGUST 2003 DELIVERED : 4 SEPTEMBER 2003 FILE NO/S : CIV 161 of 2002 BETWEEN : TARYN PATRICIA TINK Plaintiff
AND
DOROTHY BROPHO
Defendant
Catchwords: Damages - Assessment - Low back pain and depressive disorder following accident - Whether injuries attributable to accident - Impairment of plaintiff's capacity to work as pharmacy assistant - Award of damages for past economic loss and loss of earning capacity - General damages
Legislation: Motor Vehicle (Third Party Insurance) Act 1943, s 3C
Result: Plaintiff's claim allowed
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Representation:
Counsel:
Plaintiff : Mr K S Pratt
Defendant : Mr B C Sierakowski
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : Brian C Sierakowski
Case(s) referred to in judgment(s):
Wright v Shire of Albany (1993) Aust Tort Rep 81-239
Case(s) also cited:
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Graham v Baker (1961) 106 CLR 340
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Southgate v Waterford (1990) 21 NSWLR 427
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
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1 MULLER DCJ: The plaintiff, who was born on 29 July 1983 and is now aged 20, was injured in an accident on a pedestrian crossing in Wellington Street in Perth on 15 May 2000 when a vehicle driven by the defendant collided with another pedestrian crossing the road at the same time as the plaintiff forcing that person onto the plaintiff's friend who, in turn, was thrown against the plaintiff causing her to fall onto the road surface on her hands. The plaintiff allegedly suffered an injury to her lower back as a consequence of the accident. The defendant has admitted that the accident occurred as a result of his negligence and the only issues in the trial were the nature of the plaintiff's alleged injuries and whether such injuries had been caused by the accident.
Circumstances of accident 2 The plaintiff's recollection of the accident is vague. All she can recall is walking across the Wellington Street pedestrian crossing with her friend and, just before reaching the northern end of the crossing, noticing a vehicle approaching the crossing which did not stop and collided with a male pedestrian. She recollected having seen the male pedestrian being forced over the bonnet of the car but she was unable to say what happened next. All she was able to remember was finding herself on her hands on the roadway with her friend on the ground next to her. In a statement made to the police and again later in a statutory declaration she said the car hit the male pedestrian who was forced onto the bonnet of the vehicle. She went on to say he was thrown off the car onto her friend who, in turn, was forced into the plaintiff. When questioned on these earlier statements the plaintiff said she had simply assumed the accident had happened in that way. 3 Whatever the precise cause of the plaintiff being knocked to the ground might have been it is common cause that she fell on her hands and sustained superficial grazing to the palms of her hands and her elbow. She was able to get up and remain at the scene where she was questioned before being allowed to leave. She then returned home by train. 4 That evening the plaintiff felt shaken and stiff in the lower back. On the following morning the stiffness in her back was particularly pronounced and, after spending approximately one to one and a half hours at work, her employer advised her to see a doctor. She went to see a medical practitioner in the city and was prescribed pain killers.
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The plaintiff's work history following the accident
5 I have already described how, on the day after the accident, the plaintiff went to work at the Friendlies Pharmacy in Perth. She had worked in the pharmacy as a dispensary assistant since leaving school in 1999 having completed her first term in year 11. Her work entailed counter duties, the preparation of prescriptions and the stocking and re-stocking of shelves. Although there was no major physical component to her work she had to remain standing for most, if not all, the day. Following the accident she continued to work daily but suffered pain in her lower back. In the week following the accident she had to take a day off work because of her pain. She was still taking painkillers and, on the advice of her medical practitioner, began undergoing physiotherapy. The physiotherapy only gave her temporary relief. 6 In the first three months after the accident the plaintiff continued working full time but found she had to take several days off. By June 2000, however, the pain in her lower back had become so intense that she found she had to reduce her working hours. She was fortunate in that she was able to substitute for another employee and work four hours daily for a period of two months. After this time she resumed full time work. 7 By the beginning of 2001 the plaintiff said the combination of her lower back pain and her state of mind led her to contemplate resignation. She discussed this with the manager of the pharmacy who suggested she take four weeks holiday. Accepting this suggestion the plaintiff went on holiday to Queensland where she swam, walked regularly and undertook stretching exercises in an attempt to ease her pain. Her efforts proved unsuccessful and the pain persisted. This led her to telephone her manager and resign from Friendlies Pharmacy. 8 When she was out of work the plaintiff became more depressed. She said she missed work and realised she had to find another job. She contacted Friendlies Pharmacy and was fortunate to be reinstated on a full time basis at the end of May 2001. She continued working although she periodically took days off work because of her lower back pain. In October 2001, on the advice of a medical practitioner who was treating her, she reduced her number of hours from 37.5 to 21 hours a week and worked three full days on Tuesdays, Wednesdays and Thursdays each week. She still found, however, that her pain persisted particularly in the afternoons when she was working.
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9 On 28 December 2001 her employment was terminated. The pharmacy had been acquired by a new owner and she was told that her inability or failure to attend work regularly was no longer acceptable and that her services were no longer required.
10 In March 2002 the plaintiff found full time work as a pharmacy assistant in a small pharmacy in Joondalup for a period of one and a half months. The position was not particularly demanding but she had to serve customers and operate a computer. She said she continued to feel very tired at times and her lower back remained painful. 11 When this part-time position ended in April 2002 she continued to look for work and was fortunate to find a part-time position at the Friendlies Pharmacy in Subiaco. She began work at this pharmacy on 1 July 2002. She was required to work four hours daily for five days a week. As with her previous position she was required to do counter work and remain on her feet all day. She said her pain persisted and she was always relieved to be able to sit down after her four hour shift had ended. 12 Unfortunately her position did not last. On 30 September 2002 she had to leave her employment because her employer wanted a full time assistant who was able to process Medicare claims. She was unable to do this type of work and had no alternative but to leave. 13 Following the termination of her position she went to Centrelink and gained information on alternate careers. She took an interest in becoming a fitness instructor because she believed that type of work would assist in her motivation and relieve her lower back pain. She also focused on reception and computer work. She only finished with the Rehabilitative Service in June 2003 and, at the time of trial, was looking for part-time employment.
The medical evidence 14 The plaintiff saw Dr Anthony Pethick on the day after the accident. He noted that she was suffering from pain in the right lower back and to a lesser extent in the left lower back and over the left shoulder. He diagnosed her as having sustained a soft tissue injury and prescribed rest and anti-inflammatory medication. He reviewed her on what appears to have been a monthly basis until her last attendance on 26 September 2000. During the time he saw her he noticed a continuing improvement in her condition and at the last consultation expected her symptoms to persist for
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only a few months before she made a complete recovery over the fullness of time. 15 The other medical witnesses called by the plaintiff were of much the same opinion. Dr Nicola Cook, the rheumatologist to whom the plaintiff was referred, saw her on several occasions between 12 July 2001 and 23 July 2003. When first seen the plaintiff's neck and thoracic spine appeared to be normal and there was a global mild reduction in range of movement in the lumbar spine with discomfort on extremes of extension, particularly in the upright position. The plaintiff was tender upon palpation over both sacroiliac joints at the L5/S1 level and to a lesser extent at the thoraco-lumbar junction. In her initial report dated 12 July 2001 Dr Cook expressed the view that the plaintiff had suffered from increasing backache following a relatively minor incident. She prescribed anti-inflammatory medication and regular exercise. When last seen by Dr Cook on 23 July 2003, only eight to nine days before the trial, the plaintiff's symptoms remained very similar to those Dr Cook noted at the time of the initial examination. Although the plaintiff had ongoing problems with her back these were not, in Dr Cook's opinion, of a magnitude to prevent her from working at least in a part-time capacity provided she avoided repetitive bending or lifting and was able to alter her posture regularly during the course of the working day. Dr Cook believed the plaintiff would be able to work full time in due course. 16 This opinion as to the plaintiff's capacity to work was shared by Dr Catherine Nixon who is the plaintiff's current general practitioner. When Dr Nixon saw the plaintiff on 5 September 2002 she believed the plaintiff was only fit to work a maximum four hours a day. This is no longer the case. Having seen her as recently as January this year Dr Nixon now believes that the plaintiff is able to return to full time work which does not involve lifting weights, twisting or remaining in a fixed posture for any length of time. Two reports from Dr John Ker, a specialist in rehabilitation medicine, were tendered in evidence. Dr Ker, as with the other medical practitioners who examined the plaintiff, was unable to find any underlying pathology to explain the plaintiff's current state of pain. He was of the view that her symptoms would settle over time and, in his latest report dated 15 July 2003, expressed the view that her daily functioning would continue to improve leading to an increase in her mobility and her physical capacity to sit and stand for longer periods. 17 Mr Peter Watson, a neurosurgeon, saw the plaintiff for the first time on 1 March 2002. Upon examination he was unable to find any pathology to explain the plaintiff's lower back pain. He noticed she was
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able to sit comfortably, flex and touch her toes without difficulty and perform other standard tests without any apparent difficulty. He was unable to find any specific point of tenderness over the lumbar spine or any evidence of spinal deformity. A neurological examination of the lower limbs also proved normal. He concluded that the plaintiff had suffered some soft tissue and ligamentous injuries as a consequence of the accident on 15 March 2002. He did, however, express surprise at the continuation of her symptoms, and the apparent lack of progress in her recovery, almost two years after the accident. It was also significant that her symptoms radiated from one point to another and, apart from indicating the general area of her lower back, she was unable to isolate any specific area of her body where her pain was localised. 18 Mr Watson saw the plaintiff again on 2 July 2003 some four weeks before the date of trial. On this occasion she complained of the same degree of pain. In his report dated 2 July 2003 the neurosurgeon again expressed surprise at the apparent lack of improvement in the plaintiff's symptoms following what he described as a relatively minor soft tissue injury. 19 While he stressed that he would not normally be concerned with a patient's emotional state, unless that person exhibited clear signs of emotional disturbance, Mr Watson said that he did not notice any indication of any emotional problem in the plaintiff at either examination. 20 Given the relatively minor extent of the plaintiff's injury Mr Watson said he would have expected her symptoms to have resolved within a period of two to three years following the accident. In his view the plaintiff should be able to work as a pharmacy assistant on a full time basis doing the kind of tasks she performed at Friendlies Pharmacy in Perth provided she was able to sit intermittently while at work. 21 Dr Frederick Ng, a consultant psychiatrist, was asked by the plaintiff's solicitors to see the plaintiff on 1 July 2003. Having interviewed the plaintiff, and read the other medical reports that were made available to him, Dr Ng concluded that the plaintiff suffered from what he described as a partially treated major depressive disorder which, at the time of his examination, manifested itself in a mild form. He based this diagnosis on, among other things, the plaintiff's description of her continual frustration and anger with the pain she suffered. He said he was told that she felt irritable, tense and fragile and that her level of depression increased when the pain worsened. He was also told that she disliked socialising, lacked motivation and had a disturbed sleep pattern. The
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plaintiff also told Dr Ng that her libido had suffered. Relying on this description of her symptoms, and his own clinical experience, the psychiatrist concluded that the plaintiff displayed what he described as "sub-threshold anxiety symptoms" falling short of post traumatic stress disorder. He believed her condition was primarily due to the pain and trauma of the accident and had been contributed to by her loss of physical function and the loss of her job. He stressed that the plaintiff's psychiatric illness was inextricably linked to her physical symptoms and expressed the view that if she made a full physical recovery the stress which drove her mental condition would dissipate completely. 22 Dr Ng believed the plaintiff's psychiatric condition was permanent. He reached this conclusion because of her assertion that her depressed symptoms had continued for two and a quarter years despite psychotherapy and anti-depressant medication. In his view the plaintiff was fit for part time work and would benefit from an increase in the dosage of the anti-depressant medication she is currently receiving. While he believed she was currently able to work a 20 hour week he also expressed the view that it would be in her best interests to arrange a graduated return to the work place to the point where she was working a 40 hour or full time week. 23 There was conflicting evidence as to the plaintiff's mental condition. Graham Guest, a clinical psychologist to whom the plaintiff was referred, was unable to find anything in the plaintiff's presentation or demeanour to indicate that she had suffered any major psychological trauma following the accident. He interviewed the plaintiff and was of the view that her main concerns related to her employment. He did conclude, however, that she was suffering ongoing pain and had difficulties with her mood because of the combination of her problems at work and her state of pain. 24 Diane Boyer, a second clinical psychologist called by the plaintiff, said she saw the plaintiff on two occasions on 26 November 2001 and again on 3 July 2003. Her initial assessment of the plaintiff was that she appeared to be suffering from anxiety arising from uncertainty as to what was wrong with her. She concluded that the plaintiff's symptoms were suggestive of mild anxiety and mild to moderate depression. When next seen on 11 July 2003 the plaintiff seemed less anxious than on the first occasion but expressed concern about her employment prospects and her apparent physical inability to work as a pharmacy assistant on a full time basis.
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25 Other medical practitioners called as witnesses at the trial also gave evidence as to the plaintiff's mental state. Dr Nicola Cook, whose evidence I have already referred to, said the plaintiff exhibited clear signs of depression and was prescribed anti-depressant medication. Dr Catherine Nixon, the general practitioner who is currently treating the plaintiff, also believed she was suffering from significant depression and this, in her view, was the major reason the plaintiff was unable to complete her rehabilitation programme or return to work. Dr Nixon did say, however, that on the last occasion she saw the plaintiff in January 2003 her mood had improved markedly and she seemed to be taking her anti-depressant medication as required.
26 Viewing the medical evidence as a whole I have little hesitation in concluding that the plaintiff has in the past, and perhaps to a lesser extent still is, suffering from depression caused by the accident. Nearly every medical practitioner who has seen her, particularly those who attended to her on a number of occasions over a period of time, expressed the view that she did suffer significant depressive symptoms associated with the incident in question. Whether her depression is solely attributable to her state of pain, or a combination of her physical condition and the dislocation of her work life and social activities following the accident, really makes little difference. While I am unable to find, as Dr Ng has suggested, that her state of depression is permanent, I do believe her depressed condition was a direct consequence of the accident and, in conjunction with her physical pain, initially impaired her capacity to work. 27 The overwhelming consensus among the medical specialists is that the plaintiff is now able to return to her former occupation as a pharmacy assistant on a full time basis subject to the qualification that she may have to sit periodically during the course of her working day and avoid twisting, bending or lifting heavy weights. It is significant that none of her previous jobs as a pharmacy assistant involved any of these physically demanding activities. What she will always be required to do is remain on her feet for long periods of time. Her description of her work as a pharmacy assistant reveals that she would not be immobile but would have to move around frequently. This would meet one of the qualifications expressed by the medical witnesses who said she could not be expected to fulfil any function requiring her to maintain a fixed posture for any length of time. 28 In giving her evidence I found the plaintiff to be animated and quite articulate. She seemed comfortable and I was unable to find any obvious
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flaws in her testimony or signs of exaggeration in her description of her symptoms. At times she tended perhaps to underplay the significance of her diagnosed state by describing her depressive disorder as nothing more than a mood change. Subject to the qualification I will make shortly as to the duration of the plaintiff's incapacity I am satisfied that her claim of back pain is genuine. 29 I do not believe the evidence supports a finding that the plaintiff's depressive disorder currently impairs her capacity to work or is likely to do so in the future. Even Dr Ng, who went further than the other medical practitioners and psychologists in his assessment of the seriousness of the plaintiff's condition, conceded that she is fit for part-time work and that, subject to her physical condition, he would not place any conditions or restrictions on the type of work she could do. While he also said in his report dated 1 July 2003 that the plaintiff should be limited to 20 hour's work a week he really did not give any satisfactory explanation for that conclusion. It seemed to me this was simply an arbitrary figure he had selected. He only saw the plaintiff once almost three years after the incident. I do not believe he was in as good a position to assess her condition, or any improvement in her condition, as, for example, Dr Catherine Nixon, who has seen her regularly and was in a better position to assess any improvement. 30 While I am satisfied that the plaintiff did suffer from a depressive disorder following the accident, and that this disorder, together with her physical injury, adversely impaired her capacity to work, I am unable to find that the disorder still exists to the point where it hampers her capacity to return to work in a full time capacity.
Past economic loss 31 Given my finding that the plaintiff's physical and psychological disabilities were causally related to the accident the next question I have to decide is what loss the plaintiff suffered between the date of the accident and the date of trial. This issue brings into play the question of how long the plaintiff's disability has persisted or is likely to continue. I have already referred to the evidence of the medical witnesses who, without exception, expected the plaintiff to recover fully from her soft tissue injury within a reasonable length of time. The most specific evidence on this issue came from the neurosurgeon, Mr Peter Watson, and the plaintiff's current general practitioner, Dr Catherine Nixon. Mr Watson expected the plaintiff's symptoms to have resolved within a period of two to three years after the accident. Dr Nixon believed the
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plaintiff was capable of returning immediately to full time work which does not involve lifting weights, twisting or remaining in a fixed posture for any length of time. To this must be added the evidence of Mr Stewart Brash who expressed the view that the plaintiff should have overcome what he described as a minor soft tissue injury within six months of the accident. 32 Adopting what, to the plaintiff, is the most generous interpretation of the medical evidence, I am satisfied that she had regained her capacity for full time employment by the time she saw Mr Peter Watson on 15 March 2002. 33 I have made this finding for a number of reasons. In the first place I am simply unable to accept the plaintiff's claim of an ongoing and undiminished state of pain persisting for a period of what is now over three years. Her assertion that her lower back pain has not substantially improved three years after the accident is materially inconsistent with the findings of Dr Pethick who treated her in the four months following the accident and noticed a slow but significant improvement over that period. Her claim of continuing back pain cannot be reconciled with the opinions of the other medical practitioners all of whom considered the injury a minor one that should in the normal course of events have resolved within a reasonable time. Counsel for the plaintiff submitted that she might fall into an exceptional category of person who continues to suffer the effects of a soft tissue injury long after the symptoms associated with such an injury could normally be expected to have settled. I do not believe that finding is open on the evidence. Quite apart from the overwhelming body of medical evidence I was unimpressed with the plaintiff's explanation as to why, when she was forced to take time off work, ostensibly because of her low back pain, she never presented her employer with a medical certificate justifying her absence on that ground. This is particularly surprising given the memo she was sent on 6 June 2000 requiring her to provide a current medical certificate for her back injury setting out the reasons why she had asked to reduce her work hours and explaining what duties she could or could not perform. She never responded to this memo at all. On other occasions when she was absent for reasons unrelated to her back injury, as, for example, when she had conjunctivitis and chicken pox, she did supply the necessary medical certificate. It is evident from the sick leave history included in the papers before the Court that in the year 2000 she took sick leave for which she was not paid and, on other occasions, had time taken off sick deducted from her annual leave. Had these absences from work been due to her lower back pain it is reasonable to assume she would have provided her employer with a medical
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certificate to that effect. In that way she would have been paid for the time off work provided she had a sick leave entitlement. But she apparently did no such thing. I am not satisfied that all her absences from work were, in fact, due to her back condition. 34 The absence of any underlying pathology, taken in conjunction with the expectations and opinions of the various medical witnesses as to the plaintiff's expected rate of recovery, lead me to conclude that she was fit to return to work on a full time basis as a pharmacy assistant by 1 March 2002. That is exactly what she did. She found a temporary full time job at a pharmacy in Joondalup. It was also on 1 March 2002 that Mr Peter Watson examined her and could see no reason why she should not work as a pharmacy assistant provided she was able to sit intermittently during the course of her working day. 35 While I have found that the plaintiff had the capacity to work full time as a pharmacy assistant from 1 March 2002 I am also satisfied that she had a capacity to work part-time in that same position prior to that date. I have reached this conclusion because, after her return from her Queensland holiday at the beginning of 2001, she recommenced full time work with the Friendlies Pharmacy in May 2001 but subsequently reduced the number of hours she worked between October 2001-December 2001 on the recommendation of Dr Nicola Cook. Given this capacity to work on a part-time basis I award the plaintiff damages for her past economic loss calculated as per the plaintiff's schedule as follows: "Past economic loss (a) June 2000 [33.5 hours + 8.5 hours] 69.5 hours @ $6.14 gross per hour (say $5.22 net) = $362.79 Reduced hours @ Friendlies City (b) October 2001-28 December 2001, 12 weeks. Hourly rate $10.79 gross ($9.17 net). Lost hours 174 x $9.17 = $1,595.58 Unemployed (c) January 2002-March 2002 37.5 hours x $10.79 hourly rate = $404.62 gross, $344 net Approximately 12 weeks loss. 123 x $344 = $4,128"
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Though unemployed during this latter period I have found that the plaintiff had a part-time capacity to work during the period January 2002-March 2002 as evidenced by the fact that in March 2002 she found temporary work in Joondalup where she remained for one and a half months until the temporary job came to an end. Taken into account this part-time capacity the award of $4,128 must be reduced by a figure of 57 per cent which counsel for the plaintiff agreed would be an appropriate discount in the event of such a finding. This means the plaintiff is entitled to an award of $2,352 in respect of this period. 36 I award the plaintiff a total of $4,310 in relation to her loss of earnings up to the date of trial.
Future loss of working capacity 37 Although I have found that the plaintiff has regained her capacity to work full time her injury has resulted in a loss of pre-accident earning capacity because of her inability to take up employment involving any physical activity such as bending, twisting, lifting or remaining immobile for long periods. It is fortunate that the position of a pharmacy assistant does not involve any of those physical activities. The fact remains that she has suffered an immediate loss of capacity which, while not necessarily reflective of a loss of income, might affect her possibilities of future employment by making her less attractive to employers and restrict her opportunities for employment. Wright v Shire of Albany (1993) A Tort Rep 81-239. I am unable to rely on any mathematical formula in calculating the monetary value of this future loss of capacity. All I can do is award the plaintiff a reasonable sum to compensate her for this loss. It is unlikely that her incapacity will last indefinitely. I have already emphasised the surprise expressed by most of the medical witnesses that she still suffers any pain at all. The medical evidence points overwhelmingly to her making a full recovery and being able over time to remain standing for longer periods. Doing the best I can I believe the plaintiff ought to be awarded $8,000 for the loss of her current capacity to do what she was able to do before the accident.
Damages for pain and suffering 38 Following the accident the plaintiff said she had to give up a number of her regular activities. Before her injuries she played netball and enjoyed long distance running. She is no longer able to play those sports although there was some evidence that she had resumed playing netball. She attempted playing soccer approximately two months before the trial
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but suffered pain in her lower back the following day. Her social life has been disrupted to some extent. She has had to take medication both for her pain and her depressive disorder. Given my finding that the plaintiff's physical and mental symptoms continued for about two years following the accident, and the effect these symptoms have had upon her lifestyle, I would have thought an allowance for pain, suffering and loss of amenities should be put at no higher than 10 per cent. 10 per cent of $249,000, the amount referred to in s 3C of the Motor Vehicle (Third Party Insurance) Act 1943, is $24,900. This is above the current threshold of $12,500. I award the plaintiff $12,400 under this head of damages.
Claim for pharmaceutical expenses 39 The plaintiff has been taking painkillers including Brufen, Panadol and Feldene. She has also been taking Aropax for her depressive disorder. The evidence was to the effect that she would probably need to continue taking painkillers for the indefinite future and Aropax for at least another six months. I would award the plaintiff $250 in respect of the drug Aropax for the period of six months following the date of trial. The calculation of the plaintiff's likely expenses in purchasing painkillers is not quite as simple. She is entitled to a substantial allowance in the event of her having to continue using painkilling medication for some length of time. Given the figures provided by counsel in the plaintiff's schedule of pharmaceutical expenses I would award the plaintiff the sum of $750 in respect of her future need for these drugs.
Special damages 40 These have been agreed by the parties at $249.
Summary of award
Past economic loss $ 4,310.00 Future loss of working capacity $ 8,000.00 Damages for pain and suffering $12,400.00 Claim for pharmaceutical expenses $1,000.00 Special damages $249.00 $25,959.00 |