Ulijn v Insurance Commission of Western Australia
[1999] WADC 101
•28 OCTOBER 1999
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
CIVIL
LOCATION: PERTH
CITATION: ULIJN -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA & ORS [1999] WADC 101
CORAM: O'BRIEN DCJ
HEARD: 2, 3, 4 AUGUST, 14 AND 28 OCTOBER 1999
DELIVERED : 28 OCTOBER 1999
FILE NO/S: CIV 240 of 1996
BETWEEN: DIANE ROSE ULIJN
Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
First DefendantPETER RICHARD RUHLAND
Second DefendantCLARISSA KAY NUNN
Third Defendant
Catchwords:
Damages - Two motor vehicle accidents - Soft tissue injury to neck and back - Existing back problems - Turns on own facts.
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 (as amended)
Result:
Damages awarded against first defendant. Plaintiff's claim against second and third defendants dismissed.
Representation:
Counsel:
Plaintiff: David Jones
First Defendant : John Staude
Second Defendant : John Staude
Third Defendant : R Warner
Solicitors:
Plaintiff: John Rando & Co
First Defendant : John G Staude
Second Defendant : John G Staude
Third Defendant : Evangel Taylor
Case(s) referred to in judgment(s):
Andjelic v Marsland (1996) 70 ALJR 435
Coleman v McDougall, unreported; DCt of WA; Library No 4413; 3 May 1995
Fabo v Craig, unreported; DCt of WA; Library No 5023; 2 August 1996
Grubor v Adornetto, unreported; DCt of WA; Library No 5020; 19 August 1996
Southgate v Waterford (1990) NSWLR 427
Case(s) also cited:
Jarvis v SGIC, unreported; DCt of WA; Library No D980047; 27 February 1998
Stewart & Anor v Hardy, unreported; DCt of WA; Library No D990009; 18 January 1999
O'BRIEN DCJ: The plaintiff is a 39 year old woman who was involved in two motor vehicle accidents. The first accident occurred on 30 August 1995 and the second on 6 November 1996.
She claims damages as a result of the injuries she says were suffered in those accidents including past and future loss of earnings and a claim for gratuitous services.
Circumstances of the First Accident
The plaintiff was a passenger in a Magna driven by her sister, Corinne Jarvis. Ms Jarvis' husband was seated in the front passenger seat. The plaintiff was in the rear passenger seat on the rear right hand side. A baby seat was in the middle of the back seat.
The Magna approached the intersection of Whitfords and Marmion Avenues. It was in a southbound lane in a line of traffic approaching traffic lights. The lights were changing and the line of traffic was slowly moving forwards.
An orange Ford sedan which was behind the Magna was trying to get into the turning lane on the inside of the Magna (that is, on the Magna's right hand side).
According to the plaintiff, the driver of the Ford misjudged the distance and hit the rear right hand side of the Magna. The Ford did not stop but kept going. The driver has never been located.
The plaintiff described the impact as "quite a bang and it was quite a shock …". She said that she was jolted as was the baby seat next to her. She testified that she was pushed forward and the seatbelt left a burn mark across her shoulders. She was wearing a long sleeved Lycra shirt at the time.
Ms Jarvis rounded the corner and pulled over. The damage to the Magna was inspected. They then went to the Police Station and reported the incident and went home. Mr and Mrs Jarvis were not called as witnesses. There is no evidence as to whether they suffered any injuries or other effects from the accident. I am entitled to draw an inference from the unexplained failure to call the other occupants of the car that their evidence would not have assisted the plaintiff's case.
Eight photographs of the damaged Magna were in evidence. They revealed a couple of scuff marks to the rear right hand bumper. There is a note on one of the photographs which refers to the paintwork being fractured but there is no evidence as to who took the photographs or who made the observations thereon. I could not make out any damage to the paintwork at all. The plaintiff did not give a description of the damage to the car. There was no evidence as to whether the car needed repair and if so, the cost. The damage to the Magna was in my view very minor and was barely noticeable in the photographs.
The SGIC is the first defendant given that the driver of the Ford could not be found. Liability in relation to the first accident is not denied.
I shall deal with the circumstances of the second accident after examination of the medical evidence. Suffice to say that I find that the plaintiff did not suffer any injury in the second accident.
Given my finding as to the second accident, I turn to consider whether the plaintiff suffered any injury in the first accident and, if so, the nature and extent of that injury.
I intend to outline in some detail the evidence of Dr Rita Therese Fisher who had been the plaintiff's general practitioner since 1982. Dr Fisher was regarded by the plaintiff as her doctor and her friend and was someone whom she trusted. Dr Fisher was called by the plaintiff in support of her claim. Her evidence gives a very useful insight not only into the plaintiff's pre-existing medical problems but also into the social and psychological difficulties which the plaintiff had experienced over the years.
I begin by giving a brief outline of the plaintiff's personal and family background.
The Plaintiff's Personal Circumstances
There is no doubt that the plaintiff has had a difficult life. She left school when she was 14 years old and by the age of 15 gave birth to her first child. She married the father of her child but when she was only 19 years old, he was killed in a work place accident. The plaintiff was widowed at the age of 19 and by then had three children. She suffered considerable depression for two years after the death of her first husband. Her parents‑in‑law were very supportive of her during the marriage and after her husband's death and the plaintiff regarded them as her own parents.
The plaintiff remarried in 1983 and had five more children. Her second marriage broke down in 1994. However, she remains friends with her husband and he contributes financially to the children's upkeep and also assists her with chores around the house and garden. At the time of trial she had five children living with her between the ages of 8 and 16 years.
In 1995 there were a number of stresses in the plaintiff's life. Her youngest son suffers from Attention Deficit Disorder ("ADD") and was being treated by various agencies. Her mother‑in‑law died in May 1995 and this was a huge loss for the plaintiff. She became very depressed, experienced sleep disturbance, poor energy, low self-esteem and had thoughts of suicide. She was prescribed anti-depressants.
At the time of the first accident she was still taking the anti-depressants. In February 1996 the plaintiff's father‑in‑law died and this was another blow for her.
The plaintiff worked for sometime during her second marriage at Nulsen Haven, a Nursing Home. This was night time shift work. She worked from 1982 until 1986 on a casual full-time basis. Her shifts were from 9.00 pm until 7.00 am.
The plaintiff testified that she had been an active sports woman, playing netball and tennis when she was living in Cervantes from 1991 until 1994. During that time she said that she did not suffer any jarring to her body. She felt some muscle tightening from time to time in her leg but said that she was in good shape physically.
The plaintiff was overweight at the time of the first accident, weight 135 kilograms. At the time of trial she weighed 112 kilograms due to liposuction she had undergone shortly before. At some stage she had also undergone stomach stapling to control her weight.
Most, if not all, of the doctors testified that the plaintiff should lose weight and exercise in an effort to relieve her symptoms.
It is abundantly clear from Dr Fisher's evidence which documents the plaintiff's medical and other history from 1982, that the plaintiff had a number of stress factors in her life which could well have contributed to her back pain and recurrence of pain and incapacity at various times. These stresses included not those mentioned above but also the fact that she had weight problems and according to Dr Fisher when she gained weight she would become obsessed with rejection 221. Her sexual relationship with her husband was related to her weight. She had at one time been Bulimic. She had suffered a nervous breakdown and been on anti-depressants. As well, she had all the stresses and anxieties associated with brining up five young children. Her youngest son was an added stress as he suffered from ADD.
It seems from Dr Fisher's evidence that the plaintiff's physical subjective symptoms fluctuated according to the other stresses in her life including the prospect of seeing Dr Brash and Dr Febbo, doctors briefed by the SGIC.
I am left in no doubt whatsoever that the ongoing nature of the plaintiff's back and back pain was often associated with these stresses in her life.
In April 1997 the plaintiff was free of symptoms. When they recurred they appeared in the main to be associated with other stresses which she was experiencing.
I have found it to be a difficult task to make a determination as to what were the actual effects of the first accident.
Plaintiff's Description of her Symptoms Following the First Accident
Following the first accident the plaintiff said that she had pain in her leg and her back with a sharp shooting pain running down to her knee. The pain in her back was there all the time. The pain fluctuated depending on what she was doing. For example, mopping, vacuuming and making the bunk beds caused more severe pain.
She described pain in the base of her skull radiating over the top of her head and into her eyes causing a migraine like headache. She said that she felt that her head was "going to explode".
She also experienced a tingling feeling down the left side of her arm.
She underwent fact joint injections twice. They resulted in temporary relief but the pain would return. She also described the injunctions as "pretty stressful" because she had to go under anaesthetic. After the injunctions she underwent hydrotherapy but this made her dizzy and ill.
I turn now to examine the medical evidence which refers to the plaintiff's symptoms as related by her to the doctors.
An Overview of the Medical Evidence
The day after the first accident the plaintiff was seen by Dr Fisher. I examined Dr Fisher's reports and her evidence in some detail below. Dr Fisher ordered x‑rays in October 1995 which revealed no abnormality with minor lipping at C5/6.
In August 1996, because no treatment appeared to be helping the plaintiff, Dr Fisher referred her to Dr Peter Watson, a neurosurgeon. Dr Watson reviewed the x-rays and a CAT Scan and noted mild change at C5/6 but certainly no evidence of nerve root compression. He found a definite quite marked facet joint pathology on the right hand side at L3/4 and some disc bulging and protrusion at L4/5 and perhaps more significantly at L5/6. However, there did not appear to be significant nerve root compression. He was of the view that the cervical spine problems was multi-level, soft tissue and ligamentous injury from whiplash and did not think it warranted any particular treatment. He considered that it might be worth injecting the L3/4 level.
The plaintiff was then referred to Dr Graziotti, a pain specialist. He performed facet joint injections. These resulted in immediate relief but it was only temporary. He reported that the plaintiff had more severe pain after seeing her on 18 November 1996 after the second accident. He reviewed the plaintiff on 15 January 1997 when she complained that her pain was still bilateral in distribution.
Dr Watson saw the plaintiff again on 9 February 1999. He reviewed CT scans taken in October 1997 which revealed a slight increase in the diffuse bulge at the L5/S1 level compared to the previous scan done in October 1996.
Dr Watson placed a 30 per cent blame on her ongoing degenerative changes relating purely to the motor vehicle accident. He considered that the plaintiff had permanent disabilities of her lumber spine and cervical spine as a result of the accident. He rated her percentage permanent disability of the cervical spine as between 5 per cent and 10 per cent due to the accident alone and of her lumbar spine as 5 per cent due to the accident alone.
It appears that Dr Watson was not informed of the second accident.
Both Dr Watson and Dr Graziotti testified, in effect, that a minor impact could still cause whiplash type injuries of the type complained of by the plaintiff.
Mr Yacsich, an Osteopath, treated the plaintiff in 1996 but there was no progress in the plaintiff's recovery. He had treated her in 1992 and for problems in her lower spine and conducted three or four courses of treatment thereafter. The latest treatment before the first accident was in July 1995 for lower back problems. Mr Yacsich was called by the first and second defendants but did not bring his notes with him. His memory of the details of his consultations was understandably not good notwithstanding he had perused his notes before attending Court.
The plaintiff was reviewed by Dr Febbo, a Psychiatrist, at the request of the first and second defendants. This was in July and August 1997. His view was that:
"Despite Ms Ulijn's physical symptoms a detailed psychiatric assessment did not reveal the presence of significant symptoms or evidence suggestive of a major depression or an anxiety disorder at the time of my interviews."
The significance of Dr Febbo's evidence is that there is no psychiatric or psychological evidence which explains her claimed severe ongoing symptoms.
Dr Fisher
I outline Dr Fisher's reports and her evidence in some detail because I believe that her treatment of the plaintiff over the years provides somewhat of a key to the plaintiff's fluctuating and apparently worsening condition since the first accident.
Dr Fisher's Report dated 8 February 1996
The plaintiff testified that about 20 minutes after the accident she felt nauseated and felt a pain in her back and her neck. When she got home, she took some Panadol and made an appointment with her general practitioner, Dr Fisher, for the next day.
Dr Fisher stated that when the plaintiff presented to her on 1 September 1993, she complained of experiencing nausea, neck and lower back pain instantly. The nausea was accompanied by dizziness and the plaintiff told Dr Fisher that she had almost lost consciousness although she did not hit her head.
Dr Fisher found the plaintiff to have 10 degrees reduction from full range of movement into her stiff neck. In particular she was tender and painful in the lumbar spine and L5/S1 facet joints. Dr Fisher prescribed analgesia and advised the plaintiff to rest. Dr Fisher reviewed the plaintiff throughout September and she complained of ongoing aching despite an extensive exercise programme. Further, physiotherapy that she had undergone had worsened her condition. Dr Fisher advised her to stop the physiotherapy. The plaintiff also complained that she was unable to sleep because of throbbing pain in her left buttock, in particular radiating from her lumbosacral spine. She had stiff trapezius and neck muscles. Accordingly, Dr Fisher referred her for massage therapy.
On 19 October 1995 Dr Fisher reported that the plaintiff's back had become so stiff and painful in the L5/S1 region, particularly in the left facet joint area that she referred her to Ms Maureen Lissiman for physiotherapy. However, the plaintiff's financial position prevented her from being able to attend for treatment.
Dr Fisher's Report dated 7 July 1999
When Dr Fisher reviewed the plaintiff in March 1996 she was depressed for reasons not relating to the accident. She reported ongoing back pain and had managed to run her household but was finding cleaning, bending and lawnmowing impossible because of her spinal stiffness and discomfort. Vacuuming and ironing also caused discomfort.
On 29 May 1996 the plaintiff reported ongoing stiffness and back pain, some dizziness relating to neck pain and slight blurred vision and she had headaches which occurred two to three times a week and radiated from her cervical spine to her temples. Her neck movements were mildly reduced. Dr Fisher reported that the plaintiff continued to have discomfort in the lumbar and cervical spine region and in her cervical paravertebral musculature and both trapezia along with headaches two to three times a week.
Dr Fisher's Report dated 22 November 1996
Dr Fisher reported lack of progress in alleviating the symptoms of the plaintiff and referred her to Mr Yacsich. Dr Fisher telephoned Mr Yacsich on 15 August 1996 because his treatment appeared not to help the plaintiff.
Dr Fisher's Report dated 7 May 1997
Dr Fisher reported that following the availability of funds the plaintiff was treated by Ms Lissiman on several occasions for stiffness around the left C4/5 joint of her cervical spine along with mobilisation of the lumbosacral region. That treatment, together with a general exercise programme, was described by Dr Fisher as "highly successful" and she stated that the plaintiff was now able to play netball and work as a nursing assistant on an eight to 10 hour shift. At her last assessment, Dr Fisher noted a full range of neck and lumbar spine movement which were pain free although showing some stiffness in the extremes of range of movements.
Dr Fisher stated in her report of 7 May 1997 that she does not believe the plaintiff has ever been totally incapacitated for any kind of work, though she was deteriorating rapidly because of neck and spinal pain prior to the availability of treatment. Dr Fisher's view was that the plaintiff had "an excellent prognosis" and believed that the plaintiff had "reached the maximum degree of recovery" but cautioned against settlement of the plaintiff's claim for another six to 12 months.
Dr Fisher's Report dated 13 December 1997
Dr Fisher recorded on 17 July 1997 that the plaintiff was able to work as a nurse's assistant one or two nights without pain.
Dr Fisher reviewed the plaintiff on 10 October 1997 following another CT scan on 6 October 1997 when the plaintiff reported considerable aggravation of her lower back symptoms such that she had not been able to work for three or four months.
Dr Fisher referred to the X-rays taken on 6 October 1997 which revealed that the facet joint disease had become worse since the previous study which would explain the lower back pain. On examination, the plaintiff had a stiff lumbosacral spine but her upper cervicodorsal spine is in her own words "pretty good". This means that she does not have headaches and is able to move her upper torso without problems.
However, her lower lumbosacral spine and right sided facet joints at L4/5 an L5/S1 had significant pathology as outlined in the CAT scan of October 1997.
Dr Fisher's Evidence
Dr Fisher has records indicating that in February 1984 the plaintiff had been consulting Mr Yacsich for "lower back issues" 204.
Her notes reveal that the plaintiff saw Dr Fisher in June 1995 for neck and backache.
In July 1995, the plaintiff consulted Dr Fisher with stress and her note recorded "17 July 1997, unfit, low back pain, Yacsich".
Prior to the first accident, Dr Fisher's notes were rather cryptic because they were not made in the context of a possible legal claim which she said required more detailed notes.
In March 1996 her notes record the plaintiff's complaint of finding cleaning, bending and lawn mowing impossible because of her cervical stiffness and discomfort.
When asked if the plaintiff's description of her difficulties was consistent with her symptomatology, Dr Fisher said:
"… This is a serious case of an interface between mind and body, and I haven't had an opportunity to express the other set that result in the physical but mind-driven type problems in this lady that would have made her expression of symptomatology perhaps not in keeping with physical findings."
When asked whether there had been changes in the physical signs observed by Dr Fisher between 1 September 1995 and 29 May 1996, Dr Fisher replied that "There have been many changes up and down, according to what was happening to Mrs Ulijn in her life."
In October 1995 Dr Fisher said that the plaintiff was going to the Gloria Marshall Weight Loss Program. The fact that the plaintiff was doing this shortly after the accident suggested to Dr Fisher that she "wasn't too bad" and decided to postpone a CAT scan.
On 13 March 1996 the plaintiff told Dr Fisher that she was "stressed and tired, was not happy with her then lawyer and had ongoing back pain." The next note made on 16 May 1996 revealed that the plaintiff could not cope with money and house cleaning.
In August 1996 Dr Fisher called Mr Yacsich to discuss the apparent failure of his treatment and to discuss other treatment options. She decided to refer the plaintiff to Dr Watson and did so in late August 1996.
On 31 October 1996 Dr Fisher recorded that the plaintiff had "severe low back pain" and this followed the facet joint injections given by Dr Graziotti. Dr Fisher was of the view that the facet joint injections would certainly account for a large degree of pain reported by the plaintiff.
On 7 and 13 November 1996 the plaintiff saw Dr Fisher following the second accident. She presented with "acute whiplash type symptoms and aggravation of low back pain reactivating the initial symptomatology in the lumbar spine", making her headaches worse than following the first accident.
In March 1997 the plaintiff reported that she was bulimic and that her husband was impotent. She had begun to talk about sexuality issues that had developed in her marriage. There was mention that she would investigate local pool and gym resources and had shot 18 goals at a game of basketball.
When the plaintiff was examined by Dr Fisher on 2 April 1997, she had no back pain, no more leg pain at all, occasional twinges and generally her range of movement was very good. She said that she was working three times a week and was coping with it very well.
On 11 July 1997 Dr Fisher's entry recorded that until then the plaintiff had no back pain but she was due to see Dr Brash. As Dr Fisher testified the plaintiff "reported that suddenly everything had gone down hill again. She had left neck pain radiating to her eyes and she had a migraine as bad as it had ever been since the first accident." The plaintiff was depressed, was due to see Dr Febbo and had stopped taking her anti-depressants. Dr Fisher said that the latter affects pain management. She was therefore referred back to Ms Lissiman who had always seemed to "redeem (the plaintiff's) function".
On 14 August 1997 Dr Fisher reported that the plaintiff had lifted a basket causing her neck pain. She was again referred to the physiotherapist.
Dr Fisher saw the plaintiff again on 3 October 1997 and said that between 14 August and then, the plaintiff had become worse.
On 27 January 1998 the plaintiff presented with severe neck pain. It as school holidays and Dr Fisher testified that with the tension and activities required looking after children on holidays, this could well have set up an extension of a disc lesion in the neck and her lower back pain was worsening. She was referred to Dr Allan Kermode who performed an EMG on 14 February 1998 which returned a normal result.
In February there were a number of visits with the plaintiff having an increase in weight and epigastric problems following the stomach stapling after the birth of her last child and other "life stresses". Dr Fisher observed that the plaintiff does not have a lot of social or coping skills.
Dr Fisher was of the view that:
"The weight has a large mechanical contributing factor to the fact that this lady had proven osteoarthritic changes, minor initially, degenerating over the track of the last, say, 15 years, and we can now see discs in between osteoarthritically affected bone now contributing to the lady's demonstrable back pain and spinal pain problems. So the extra weight would aggravate considerably the conditions that I have just described."
There was a gap of six months until August 1998 when the plaintiff did not consult Dr Fisher.
Circumstances of the Second Accident
The second accident happened on 6 November 1997 in the shopping centre at Quinns Rock. The plaintiff was a passenger in a car driven by the third defendant, her sister, Clarissa Nunn. The car was a Lancer owned by the plaintiff. She was seated in the front seat and was wearing a seatbelt. It was raining at the time. The Lancer was facing south.
As Ms Nunn reversed out of the parking space, a car driven by the third defendant, Mr Rhuland, was reversing out of a parking space directly behind. Mr Rhuland was driving a Suzuki Swift sedan. The Swift had been facing north. The two cars collided. The plaintiff said that the Lancer she was in was hit on the rear left bumper and side panel. She said that the collision:
"knocked us sideways a bit and the car, instead of being straight, was sort of knocked that way and we were sort of on an angle and we sort of got knocked a bit, a bit of swaying there …".
The plaintiff testified that on collision she went "sideways". Under cross-examination she said the impact jarred her whole body sideways, towards her sister. There was the noise of a bang and it frightened her. The plaintiff said the noise was such that people came out of the shops to see what was happening.
She felt immediate pain on the right-hand side of her back and lower back. Shortly after this collision she said that her back pain became more excruciating. She had never had pain in the right side of her back before. She said that the pain in her neck and headaches returned and she ended up going to see Dr Fisher and having a CAT scan.
Mr Rhuland is a retired pilot. He testified that be backed out of his parking space towards the right-hand side and the Lancer was backing out towards the left. He said that his rear bumper slipped alongside the Lancer's left bumper. He said they grated together. He heard a noise which he described as a "small scraping" sound. There was no bump, no back-to-back collision. The cars ended up parallel and about 18 inches apart.
He got out of the car and inspected it. He noticed a scrape mark on both cars. He said that the scrape was on the paint on the bumper. The scrape was on his bumper bar but there were no indentations on either car. He said he exchanged addresses with the other driver. He may have apologised and said words to the effect that he did not see her. Mr Rhuland said he attributes the blame for the collision 50/50.
Later he took a little bit of "No 2 polish" and a rag and five minutes later he could not see any marks on his car. He estimated the speed of his car at 3 kilometres per hour.
Sometime later a woman using the name "Nunn" telephoned him and said that the damage to her car was $650 and that she was not insured.
The plaintiff testified that the whole sub-frame of the Lancer was cracked. This car was about one to two years old. She said that she obtained a verbal quote that the damage would cost $1,500 to fix. She was unable to recall if the car was insured. He did not have the car repaired and later sold it. If indeed the damage was as the plaintiff described it, it is unusual that a claim was not pursued with Mr Rhuland's insurer. It is more unusual that the car should be sold in the damaged condition as described by the plaintiff.
I do not accept the evidence of the plaintiff as to the force of the collision. I accept totally the evidence of Mr Rhuland. I find that the impact was extremely minor and would not have caused the Lancer to sway or be knocked sideways, let alone any injury to the plaintiff. Whatever pain and discomfort the plaintiff may have felt after this incident, in my view, is not attributable to the collision.
In coming to this finding, I have taken into account the factors impacting on the plaintiff's credibility which I have outlined below.
Given my finding that the second accident did not cause any new or aggravating injury to the plaintiff, it is not necessary to determine the issue of liability but for the sake of completeness, I do so. It would seem that neither driver was keeping a proper lookout when they simultaneously reversed out of their respective parking spaces. Accordingly, I would determine liability to be equally apportioned between the drivers.
Credibility Factors
The plaintiff told all of the specialists who treated her that she had no pre-accident history of neck or back pain. Those doctors relied on her history, coupled with clinical examination and the X-rays and CAT scans when forming their opinions as to the nature and extent of the injuries and whether the injuries were the result of one or more motor vehicle accidents.
In my view it is highly improbable that the plaintiff could have forgotten that she had experienced headaches and back pain or problems before the first accident. The fact that she denied these problems when referred to the specialists causes me to draw an inference that she was seeking to maximise the effects of the accidents. Further, the weight of the specialists' opinions is considerably reduced given the misleading history supplied by the plaintiff.
In her answer to interrogatories sworn on 6 May 1998, the plaintiff answered in the negative when asked if prior to the material date she had ever suffered any neck pain or restrictions of movement; any headaches; any low back pain or restrictions of movement.
These answers were not true.
Dr Fisher testified:
"… I have to say that she's always had evidence of the neck and lower back pain causing problems and in fact had prior to the 95 accident a history of migraines, which is classically triggered by muscle contraction in the neck and trapezius region."
On 18 February 1997 the plaintiff applied for employment through Agency Health Services Pty Ltd and completed an application form. Again she relied in the negative to questions asking if she had ever suffered a back, neck or shoulder injury. When cross-examined about these answers, the plaintiff said that she thought the questions were directed to injuries incurred in the work place. I find this answer to be implausible.
Further when she applied for work at the Agency, the plaintiff used her first married name, "Jones". She said she did this because that was her name when she was working at Nulsen Haven during her first marriage. However, as I understand the evidence, she had not worked since 1986. Again, I do not find her explanation for the use of the name "Jones" persuasive.
The plaintiff used a walking stick in Court and said it was necessary to use one when she had to walk long distances. She said that she had been using a stick for about eight months. Further, she testified that she had trouble driving her car. However, surveillance photographs taken in March 1999 were tendered showing the plaintiff wheeling a shopping trolley without using her stick and loading her shopping into her car. Further, she bought a new car in 1998 which does not necessarily tally with her claim that she has difficulty driving a car.
The plaintiff testified that she needed to work in 1997 because she was "desperate to be able to support her children …". However, under cross-examination, when it was suggested that her financial circumstances were straitened, she replied in the negative. In response to a question that she was well off, she replied that she was "comfortable" and received various Government benefits of $906 per fortnight as well as maintenance from her husband. She was unable to give any indication as to how her pension would be affected if she earned any income.
The plaintiff said that she had to give up her sporting activities because of the accident. However, Dr Fisher recorded in her notes that several weeks after the second accident the plaintiff was able to shoot 18 goals at netball.
I have already mentioned the damage to the Lancer which the plaintiff claimed amounted to $1,500. First, I do not accept that evidence given the circumstances of the accident. Secondly, I find it remarkable that no claim was pursued against Mr Rhulan's insurer to repair the Lancer whatever the plaintiff's financial circumstances may have been. Further, I find that the plaintiff exaggerated her account of the damage to the car which she said was in a good condition until it was hit. I also find that the plaintiff exaggerated her account of the circumstances of the second accident.
Dr Brash's Evidence
Dr Stewart Brash examined the plaintiff at the request of the SGIC on 10 July 1997 and 22 July 1999. Dr Brash practised as an orthopaedic surgeon for many years; between 1972 and 1981 he was Chief of Orthopaedics at the University of Western Ontario; from 1981 he was chairman of the Pain Clinic and a senior orthopaedic consultant at Royal Perth Hospital. He retired in 1986 and has continued to practise as a consultant.
On 10 July 1997 the plaintiff rated her pain level on a scale of 0-10 with 0 being no pain and 10 the worst pain imaginable as between 4-9 out of 10. On 22 July she rated her pain between 5½ and 10. She agreed that neither the passage of time or any treatment to then had really helped her.
Dr Brash found several inconsistencies in his examination of the plaintiff. He was of the view that there are non-organic or fictional factors present in the total pain picture. His option was based on the following:
•The inability to reconcile the ongoing constant and severe symptoms with the underlying clinical findings;
•The inconsistency of straight leg raising;
•The inconsistency of forward flexion;
•The non-anatomical sensory changes.
I have already referred to Dr Fisher's evidence that just prior to seeing Dr Brash the plaintiff had been free of symptoms but they suddenly reappeared pending that consultation with Dr Brash. This is no doubt an example of what Dr Fisher was referring to when she said that the plaintiff's symptoms seemed to fluctuate according to what was happening in the plaintiff's life.
The cumulative effect of these "credibility" factors causes me to have grave doubts as to the reliability of the plaintiff's evidence as to the severity of the impact of the first accident. I say this particularly in the context of the minor damage caused to the car in which the plaintiff was travelling.
Findings of Fact in Relation to the First Accident
I have no doubt that the plaintiff has had a very difficult time since her first husband died. She has brought up eight children and still has five at home with her. The breakdown of her second marriage, the deaths of her parents inlaw, the subsequent depression, the difficulty with her youngest son, her weight and other social problems have no doubt made life very hard indeed for the plaintiff. However, in the absence of psychiatric and/or psychological evidence, I am unable to find that these factors somehow accounted for the severity of the symptoms of which she complains. The best I can do is to speculate that the plaintiff's background contributed to her being more susceptible or vulnerable to being injured severely more than others in the first accident. I cannot and do not speculate. I can only decide matters on the evidence.
It is clear that the plaintiff has had lower back problems for many years prior to the first accident. She sought to minimise these in her evidence and denied them to her doctors, in her interrogatories and in her application for work. I do not accept her explanations for her denials. As well, there are other factors impacting on the plaintiff's credibility which I have already mentioned.
More importantly, the plaintiff complained of lower back pain and was either referred to or discussed with Dr Fisher treatment by Mr Yacsich in July 1995, a month before the first accident.
I accept the evidence of Dr Fisher that the plaintiff's symptoms fluctuated depending on what other stresses were going on in her life. It is noteworthy that the plaintiff's symptoms recurred coincidentally when she was about to see Dr Brash. I accept his evidence which casts great doubt on the truthfulness of the plaintiff's account of her symptoms at the time she saw him in July 1997 and 1999. Dr Fisher's observations about the sudden recurrence of the symptoms only strengthens my view of Dr Brash's opinion.
The only account I have of the circumstances of the first accident is the plaintiff's. The unexplained failure to call her sister or her husband to support her account of the accident allows an inference to be drawn that they would not have been able to give evidence favourable to the plaintiff.
The only objective evidence before me as to the first accident is the photographs of the damage to the car. The damage is only just discernible. In my view, at worst, the Ford barely scraped the Magna. I do not accept the plaintiff's account of the force of the impact given the photographs and the fact that witnesses who could have supported her account were inexplicably not called.
I accept the evidence of Dr Watson and Dr Graziotti that even minor impacts can cause whiplash type injuries.
Taking all these factors into account, I find, on balance, that there was a minor aggravation of the plaintiff's pre-existing back injury and a minor injury to her neck as a result of the first accident. By October 1996 Dr Fisher did not think her injuries were "too bad". By April 1997 the plaintiff was not in any pain apart from the occasional twinge.
The burden is on the plaintiff to establish the nature and extent of her injuries. Notwithstanding my findings as to the circumstances of the first accident and my findings as to the injury caused, it is still very difficult to unravel the considerable bulk of evidence to determine what were genuine symptoms caused by the first accident, to what extent the accident aggravated the pre-existing condition and what were imagined or exaggerated symptoms.
Section 3C(2) of the Motor Vehicle (Third Party Insurance) Act 1943 provides that:
"The amount of the damages to be awarded for non-pecuniary loss is to be a proportion determined according to the security of the non-pecuniary loss, of the maximum amount that may be awarded."
The maximum amount is currently $219,000 (s3C(3) - see Government Gazette 22 June 1999).
To arrive at an award for non-pecuniary loss, it is necessary in the first instance to determine what proportion (ie percentage) the plaintiff's claim is of $219,000 rather than making an assessment of a pecuniary amount and treating that as a proportion of the $219,000. (Southgate v Waterford (1990) NSWLR 427 at 440E-441F approved in Andjelic v Marsland (1996) 70 ALJR 435 and as applied, for example, in Coleman v McDougall, unreported; DCt of WA; Library No 4413; 3 May 1995; Fabo v Craig, unreported; DCt of WA; Library No 5023; 2 August 1996; and Grubor v Adornetto, unreported; DCt of WA; Library No 5020; 19 August 1996).
Doing the best I can with the evidence, I assess the percentage of the maximum amount payable under the Act for the most extreme case at 6.5 per cent. The net amount I award for non-pecuniary loss is therefore $14,235. As this amount is more than $10,500 (AMOUNT B) but less than $33,000 (AMOUNT C) the plaintiff is entitled to the excess of the amount so assessed over $10,500 (AMOUNT B) [s3C(5)].
Accordingly, the net amount of damages for non-pecuniary loss is $3,735.
The plaintiff also claimed for gratuitous services provided by her daughter from 1 December 1998. The plaintiff has not satisfied me on the balance of probabilities that if she required assistance since then it was as a result of the injuries caused in the first accident. I say this particularly in view of the medical evidence which revealed that by October 1996 the plaintiff had considerably improved and from March to August 1997 was able to return to work. In my view, it was more probable than not such assistance was required due to the plaintiff's longstanding social and family problems and/or back problems which were not the result of the first accident.
The plaintiff has not satisfied me on the balance of probabilities that she will be permanently unfit to return to the workplace. In her report dated 7 May 1997, Dr Fisher was of the view that the plaintiff had never been totally incapacitated for work and at that stage considered that she had an excellent prognosis. Dr Watson was of a different view, but he did not have the frequent and regular contact with the plaintiff as did Dr Fisher. As well, the weight of his opinion is diluted in my view by the plaintiff failing to give him a truthful history of her medical condition. In any event, if the plaintiff is unable to return to work of whatever kind, she has not satisfied me that this is because of injuries caused by the first accident.
The plaintiff also claimed for past economic loss.
The plaintiff testified that she intended to resume work in 1994. Nulsen Haven had closed. She said that she "was in touch with" Activ Foundation and Graylands Mental Hospital but did not obtain work with them because she did not have the appropriate qualifications. However, she continued to look for work through 1995. There is no other evidence of her efforts to find work.
Moreover, the plaintiff's mother‑in‑law died in May 1995 and the plaintiff suffered depression as a result of her loss. Further, her youngest son's ADD had not stabilised. In 1996 the plaintiff's father‑in‑law died and that prolonged the plaintiff's depression. I am far from satisfied that the plaintiff was making serious efforts to return to the workforce even is she was capable of doing so. However, given the myriad of social upsets facing the plaintiff during this time, her pre‑existing back problem and the fact that there is little, if any, evidence to show that she would be financially better off working, I am not satisfied that she had a genuine intention of returning to work in 1995/1996 and even less satisfied that she was capable of working night shifts in a nursing home. Accordingly, I dismiss the plaintiff's claim for past economic loss.
In summary, I order that the first defendant pay general damages to the plaintiff in the sum of $3,735.
I dismiss the plaintiff's claim against the second and third defendants.
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