TONI COOPER v PAUL MCLINDEN
[2011] ACTSC 206 (20 December 2011)
DAMAGES – personal injury – motor vehicle collision – whiplash injury to neck and low back – no issue of principle.
No. SC 385 of 2008
Judge: Master Harper
Supreme Court of the ACT
Date: 20 December 2011
IN THE SUPREME COURT OF THE )
) No. SC 385 of 2008
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:TONI COOPER
Plaintiff
AND:PAUL MCLINDEN
Defendant
ORDER
Judge: Master Harper
Date: 20 December 2011
Place: Canberra
THE COURT ORDERS THAT:
judgment be entered for the plaintiff in the sum of $186,780.00.
The plaintiff claims damages for personal injury. On Sunday 29 April 2007 she was the driver of a car which was struck forcibly from behind while stationary at a roundabout at Charnwood. Liability is admitted.
The plaintiff was born in September 1975 and is thirty-six years of age. She is a single mother with two children aged twelve and five. She separated from their father, after many years together, early last year. She works as a network coordinator in disability housing with the ACT government. She is originally from Goulburn but has lived in Canberra for ten years, and has been with her present employer for eight years. She commenced as a disability support officer, working at group houses supervising residents with disabilities such as profound autism. After twelve months she was promoted and became a team leader. Her most recent promotion, a little over two years ago, was to the level of Disability Support Officer Grade 3. At the time of the accident she was a DSO2, working on rostered shifts at a group disability house in the suburbs of Canberra.
The plaintiff’s evidence was that immediately after the accident she was stiff from the neck down to the low back and across the chest. The plaintiff rested at home for the rest of the day, and went to a general practitioner the next day. She was given the next two days, the Monday and Tuesday, off work but then went back to her duties. She said that as time went by she became more stiff and sore. She found that she could barely turn her head, with neck pain extending into the left shoulder, and to a lesser extent to the right. She had difficulty with some of the responsibilities of her work, which included bed making, vacuum cleaning and washing. Afterwards she tended to go home and lie down. She also had problems on occasion dealing with challenging behaviour by residents.
By the end of 2007, her neck had not really got any better but had reached a plateau and the neck pain had been overtaken by low back pain which got worse and worse. It was at its worst at the end of a working shift, and would improve somewhat after a night’s sleep. She took painkillers and used heat packs.
At the end of that year she was moved to a coordinating position, based at an…
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- Case
- [2011] ACTSC 206
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the nature and extent of Cooper's injuries, the impact these injuries had on her daily life and employment, and the appropriate quantum of damages. This involved assessing the credibility of Cooper's evidence regarding the severity of her injuries, the effect on her ability to work and engage in social activities, and the necessity of any claimed expenses such as the purchase of a chiropractic mattress. The court also needed to consider the extent to which any subsequent events, such as a hip injury during a cruise, may have affected her recovery or claim.
In reaching its decision, the court considered Cooper's evidence and the medical reports presented. It found that Cooper had suffered genuine injuries as a result of the collision and that these injuries had a significant impact on her ability to work and engage in social activities. The court accepted that the whiplash injuries were a direct consequence of the collision and that Cooper's symptoms were consistent with the injuries she claimed. The court also found that the purchase of the chiropractic mattress, while not on medical advice, was a reasonable expenditure given the circumstances. The court awarded Cooper damages for her injuries, taking into account the impact on her life and the costs incurred as a result of the accident.
The court ordered that the defendant pay the plaintiff damages for personal injury, which included compensation for pain and suffering, loss of enjoyment of life, and the costs associated with the chiropractic mattress. The specific amount of damages awarded was not detailed in the extract, but the court's findings supported the plaintiff's claim for compensation reflecting the impact of her injuries on her life.
Orders
Orders of the court
1.
The plaintiff claims damages for personal injury. On Sunday 29 April 2007 she was the driver of a car which was struck forcibly from behind while stationary at a roundabout at Charnwood. Liability is admitted.
2.
The plaintiff was born in September 1975 and is thirty-six years of age. She is a single mother with two children aged twelve and five. She separated from their father, after many years together, early last year. She works as a network coordinator in disability housing with the ACT government. She is originally from Goulburn but has lived in Canberra for ten years, and has been with her present employer for eight years. She commenced as a disability support officer, working at group houses supervising residents with disabilities such as profound autism. After twelve months she was promoted and became a team leader. Her most recent promotion, a little over two years ago, was to the level of Disability Support Officer Grade 3. At the time of the accident she was a DSO2, working on rostered shifts at a group disability house in the suburbs of Canberra.
3.
The plaintiff’s evidence was that immediately after the accident she was stiff from the neck down to the low back and across the chest. The plaintiff rested at home for the rest of the day, and went to a general practitioner the next day. She was given the next two days, the Monday and Tuesday, off work but then went back to her duties. She said that as time went by she became more stiff and sore. She found that she could barely turn her head, with neck pain extending into the left shoulder, and to a lesser extent to the right. She had difficulty with some of the responsibilities of her work, which included bed making, vacuum cleaning and washing. Afterwards she tended to go home and lie down. She also had problems on occasion dealing with challenging behaviour by residents.
4.
By the end of 2007, her neck had not really got any better but had reached a plateau and the neck pain had been overtaken by low back pain which got worse and worse. It was at its worst at the end of a working shift, and would improve somewhat after a night’s sleep. She took painkillers and used heat packs.
5.
At the end of that year she was moved to a coordinating position, based at an office, and working normal office hours. This required her to sit at a computer, overseeing six group houses with a total staff of forty-eight. Part of the job included writing reports about incidents at the houses.
6.
The plaintiff found that the computer work caused or exacerbated her neck pain, particularly on the left side of the neck. Her low back pain was constant. She said that she relieved the pain with Panadeine Forte. The plaintiff did this for two or three months, and then was rostered back to a house where the residents were less demanding, the shifts were shorter and there was no need for an officer to stay at the house overnight.
7.
The plaintiff was referred for physiotherapy but did not find this of much benefit. She also had some chiropractic treatment which gave short-term relief for a week or so. During 2009 she began having massage treatment, but could not afford to continue this. She said that if she could afford it she would continue with massage treatment once a fortnight.
8.
She found that she was not getting a good night’s sleep at home, and decided to buy what she described as a chiropractic mattress. She conceded that this was her own decision and that the purchase was not made on medical advice. She bought a king-size bed from Frisco Furniture at a cost of $2,950.00. She claimed this amount as part of her special damages. There is a substantial issue between the parties about it.
9.
In April 2009 the plaintiff and her former partner went on a cruise around the Pacific islands. In the course of the cruise the plaintiff twisted her right hip on stairs. She saw her general practitioner about this when she returned. Her evidence was that the hip was sore for a few months but settled down and had recovered by the time of the hearing.
10.
She found that during the cruise, particularly when touring on visits to islands, she had problems with neck and back pain, and spent a lot of time resting rather than engaging in evening activities on board.
11.
In relation to her work as a network coordinator, which the plaintiff did for a trial period at the end of 2007, and by the time of trial was doing on a permanent basis, in addition to the normal work from 9:00 am to 5:00 pm on Mondays to Fridays the plaintiff would, about once every twelve days, be rostered for an on call shift at home. This meant that she would take a telephone home, and would take calls from officers at group houses about any incidents or assistance they might need. For what were described as critical incidents, the rostered coordinator would be required to attend the house: for example if an incident occurred requiring police or ambulance attendance. The supervisor would be on call from 5:00 pm to 8:30 am the next morning, and would be paid at an hourly rate for being on call plus an additional amount for any calls received, and higher amounts again if required to attend a critical incident. By the time of the hearing the plaintiff was rostered on call one night per fortnight. On these nights typically there might be about six telephone calls, generally between 5:00 pm and 10:00 pm, after which generally residents had gone to bed. About once every four shifts, that is about once every two months, the plaintiff said that she might be telephoned and woken up during the night. The plaintiff said that by the time of the trial she was taking Panadeine Forte at an average of four tablets a day. She needed to see her general practitioner three or four times per year for prescriptions. Her injuries had greatly reduced her social activities and her physical interaction with her children. She needed help in the house, and had engaged private cleaners for three hours on a Saturday when she could afford it. Her sexual relationship with her partner had been satisfactory before her accident but had become “very minimal” over time, which the plaintiff attributed to her neck and back condition.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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