Useinoski v McCutcheon
[2004] WADC 15
•11 FEBRUARY 2004
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: USEINOSKI -v- McCUTCHEON [2004] WADC 15
CORAM: WILLIAMS DCJ
HEARD: 1-3 DECEMBER 2003
DELIVERED : 11 FEBRUARY 2004
FILE NO/S: CIV 898 of 2002
BETWEEN: MUKA USEINOSKI
Plaintiff
AND
MARGARET PATRICIA McCUTCHEON
Defendant
Catchwords:
Damages - Assessment - Personal injury - 41 year old suffering minor soft tissue injuries to neck and back - No loss of earning capacity
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943, s 3C(2), s 3C(3)
Result:
Damages assessed at $6,175
Representation:
Counsel:
Plaintiff: Mr P Haynes
Defendant: Mr P Olivier
Solicitors:
Plaintiff: Paul O'Halloran & Associates
Defendant: Talbot & Olivier
Case(s) referred to in judgment(s):
Graham v Baker (1961) 106 CLR 340
Case(s) also cited:
Nil
WILLIAMS DCJ: As a result of the admitted negligent driving of the defendant on 21 August 2000 the plaintiff alleges that she was injured in a motor vehicle accident and she now brings this action for damages. Liability is admitted and the matter proceeds before me by way of assessment of damages.
The plaintiff's evidence
The plaintiff was born of 3 January 1963 in Macedonia. The plaintiff was born profoundly deaf. According to her she is deaf in both ears. She wears a hearing aid in one ear but is unable to wear one in the other ear because of an infection. Without a hearing aid she is unable to hear anything.
The plaintiff originally came to Australia in 1969 and in September 1984 returned to Macedonia. She married in Macedonia and returned to Australia with her husband on 12 May 1985. There are four sons of the marriage Kadria born 19 March 1986, Ayran born 9 November 1987, Eles born 17 March 1992 and Jengis born 4 April 1995. She resides with her husband and children in a Homeswest house in Joondanna and has been there for 17 years.
The accident
On 21 August 2001 the plaintiff was a passenger in a motor vehicle driven by her husband on Raymond Street Yokine. The vehicle was stationery waiting to turn right into Roscolla Street when the defendant's vehicle collided with the rear of the plaintiff's vehicle.
The claim
By the statement of claim it is pleaded that the plaintiff sustained:
"7.1 Soft tissue injury to the lumbar spine;
7.2 -Soft tissue injury to the right lower limb."
By par 8 it is pleaded that since the accident the plaintiff has suffered from the following symptoms and loss of enjoyment of life.
"8.1 Swelling to the right shoulder;
8.2 Shock and trauma;
8.3 Pain and tenderness to the cervical spine;
8.4Due to restricted movement to the cervical spine difficulty in bending the head forward or backward or to the left or right side;
8.5Restriction of movement to the right shoulder;
8.6Restriction of movement to the right arm;
8.7Pins and needles/tingling sensation to the right arm;
8.8Loss of feeling to the right arm;
8.9Pain to the lumbar spine;
8.10Tenderness to the lumbar spine;
8.11Restriction of movement to the lumbar spine;
8.12Due to pain to the lumbar spine difficulty in bending over, squatting, bending the body to the left side, bending the body to the right side, and getting up from a lying down position;
8.13Headaches;
8.14Disturbed sleep;
8.15Stress and anxiety;
8.16The Plaintiff is restricted or unable to perform the following activities which aggravate the Plaintiff's symptoms: sitting, standing or walking for an extended period; driving or travelling in a car for an extended period; sitting at a table; writing or reading for an extended period; studying for an extended period; operating a computer terminal for an extended period; bending over; squatting; attempting to jog or run; attempting to lift or carry a heavy object; attempting to carry out a repetitive or prolonged physical activity; attempting to dress or undress; attempting to shower or bath; attempting to carry out domestic tasks including; cooking, vacuuming, ironing, washing clothes, hanging out clothes, washing floors and washing dishes;
8.17 Following the accident the plaintiff has been partially restricted from participating in gardening, dancing, attending the movie cinema's, which activities the Plaintiff regularly participated in and enjoyed prior to the accident."
The medical evidence
According to the plaintiff following the accident she went home and telephoned her general practitioner Dr Boichef who visited her at her home. He apparently sent her for x-rays and prescribed panadol and panadeine forte.
Dr Boichef was not called as a witness and no reports from him were tendered in evidence. There is therefore no early medical history in evidence.
Mr Peter Anderson is an orthopaedic surgeon specialising in rehabilitation medicine. He first saw the plaintiff on the 8 November 2000. At that time the plaintiff was complaining of pain in the neck, her right shoulder and the lumbar spine. She also had pain in the right leg that he diagnosed as referred pain from the lumbar spine. At that time she was taking panadeine forte. On 25 January 2001 she was still complaining of pain and stiffness in the cervical spine, the right shoulder and the lumbar spine.
When he saw her on the 22 February 2001 he considered that her straight leg raising was restricted on the right side. On 23 February 2001 she had diminished sensation in the right foot involving the fifth lumbar nerve root. On 1 June 2001 he assessed her neck and shoulder disability as a 10 per cent impairment rating and in respect to the low back pain and right-sided sciatica a 20 per cent impairment rating.
On 4 February 2002 he considered that the impairment rating for her right shoulder was 20 per cent. The cervical abnormality attracted a 5 per cent impairment rating and the lumbar spine a 10 per cent impairment rating.
On 17 March 2003 Mr Anderson tested her as having a 5 per cent impairment rating in the cervical spine, a 5 per cent impairment rating in the right shoulder, a 10 per cent impairment rating in the lumbar spine and a 5 per cent impairment rating in the lower right limb on account of referred pain.
He had however since seen the surveillance film of the plaintiff (Exhibit 3A&B). He accepted that where the plaintiff is observed hanging out towels on the clothesline she is able to move her right shoulder reasonably well. For that reason he considered that the symptoms in her neck and shoulder had diminished.
He did not think that she had an ability to work as a cleaner. He was also surprised that the surveillance film showed her walking without any apparent limitation in the right shoulder. Based on his observation of the film he now was of the view that the plaintiff had recovered from her neck and shoulder injury.
Dr Robert Warner is an occupational physician. He saw the plaintiff on the one occasion on the 31 July 2003. He considered that she had a 15 per cent disability of the cervical spine and a 5 per cent disability of the lumbar spine. He did not consider that she was fit to work as a cleaner. He described that as not being an easy job physically as it involved mopping, sweeping and the carrying of bins. He considered that it was a neck condition that stopped her from working.
He accepted that x-rays of her cervical spine, her right shoulder and her lumbar sacral spine were normal. She had made no complaints of shoulder pain to him. He considered that the neck pain was the most worrisome and that she had minor problems with the lumbar spine.
He considered that she was unemployable in the labour market.
Both Mr Anderson and Dr Warner were called by the plaintiff.
The defendant called two medical practitioners.
Dr John Rosenthal is a specialist in rehabilitation medicine and he examined the plaintiff on 9 February 2001. He was of the view that the plaintiff displayed overt evidence of abnormal illness behaviour. She was uncooperative. She had an exaggerated limp. She refused to squat, heel or toe walk. Her voluntary range of movement of back and neck was minimal. He was shown a segment of the surveillance film showing the plaintiff hanging washing on the line and concluded that the range of movement to both her arms was normal. Her cervical extension and flexion appeared normal and rotation appeared reasonable.
He accepted that the collision had imposed soft tissue injury to her neck and back but was of the view that her illness behaviour was completely out of proportion to the injury.
Dr David Rosen is a neurologist. He saw the plaintiff on the 28 July 2003. It was his conclusion that her level of complaint of pain was greater than the actual pain. The CT scan was pristine. Her complaints of progressive symptoms was inconsistent with the nature of a soft tissue injury. He concluded that her illness behaviour was significant and that was perpetuating her symptoms and there was no physical reason for her pain.
He was shown the video surveillance film dealing with plaintiff hanging washing on the clothesline. It was his evidence that he previously asked her about the washing and she had told him that her eldest son did the washing and that the children hang out the clothes. He considered that she suffered from an extreme form of dysfunctional illness behaviour. He was asked about the minor lateral disk bulge at L4/5 referred to in the radiology report of Dr Kumar of 17 April 2001. It was his view that the disk bulge could cause pain. However, the latest CT scan does not show a disk bulge and he discounted that as a serious cause of pain.
The plaintiff's employment history
The plaintiff had considerable difficulty in articulating her past work history. Initially in her evidence-in-chief she stated that she had not worked outside the home for an employer. She also that stated she had not been to work before the date of her accident.
Later in her examination-in-chief she stated that she had worked as a cleaner. She did not remember when she worked as a cleaner. Her comment was "its written in the book, I can't remember really". She expressed the view that she would like to do cleaning work or work as a seamstress. Her evidence was that she attended Swanbourne Senior High School and left in year 10 when she was aged 16. At school she learnt dressmaking. After leaving school she worked as a dressmaker in Leederville for five years. She then went on a holiday and then worked for a further 1½ years after that. She then stated that she went on holiday for 1½ years to Macedonia. However, she had previously told me that she left Australia in September 1984 for Macedonia and returned on the 12 May 1985. This is a period considerably less than 1½ years. She stated that after she came back from Macedonia she did not work any more.
However, in cross-examination she stated that she had worked for the Water Supply. Maybe it was in 1976–7, maybe in 1986 she did not know when. She had no papers. She had never filed a tax return. She only worked for a period of two months.
The plaintiff's credibility
In assessing the plaintiff's credibility I need to bear in mind that she has something of a communication problem in that she is profoundly deaf. Not only is she profoundly deaf but she is unable to speak English and her evidence was given through an interpreter. Taking this aspect into account in my view the position is that the plaintiff has exaggerated her symptoms. It is demonstrated in number of areas.
The plaintiff's complaints of problems with respect to her right arm have clearly been exaggerated. Mr Anderson found that the range movement in her right shoulder was approximately 75 per cent of the normal range for each parameter. Dr Rosenthal stated that she could not elevate her right arm above 40 degrees. But the surveillance video film (Exhibit 3A, sections 6&7) showed her hanging clothes on the clothesline. All the doctors indicated that she there exhibited a normal range of movement. The plaintiff says she is unable to hang washing on the line because of the pain in her arm and shoulder. The video indicated that is not the case.
Her straight leg-raising test before Dr Rosen showed inconsistencies. She showed inconsistencies in her ability to perform lumbar sacral flexion when sitting and standing before Dr Rosen.
Her answers to interrogatories are also inconsistent with her evidence. In answer to interrogatory number 28 she stated that she was employed within the three-year period prior to the 21 August 2000. When questioned in relation to that interrogatory she stated that she never went back to work at the Water Supply after Eles became sick when he was 2½. That would have been 1994.
In answer to interrogatory number 29 she stated that she was not able to give the name and address of her employers without obtaining her tax returns. However, in evidence the plaintiff said on oath that she never filed any tax returns.
Exhibit 1 being plaintiff's informal list of discoverable documents does not identify any tax return.
The injuries
The plaintiff's main complaints are with respect to her cervical spine, her right arm and her lumbar spine.
In relation to her cervical spine Mr Anderson accepted that was minor. Dr Warner said that it was the more serious of her injuries. Dr Rosenthal said that it was transitory. Dr Rosen said that the CT scan was pristine. I prefer the evidence of Mr Anderson, Dr Rosenthal and Dr Rosen to that of Dr Warner.
It is my finding that the plaintiff suffered a minor soft tissue injury to the cervical spine which has now resolved.
Although the plaintiff complains about an injury to her right arm it is not pleaded as an injury. She says that she has many things that she is not able to do because of the pain in her right arm. In my view there is clear evidence of embellishment when she is seen to be operating at the clothesline hanging out the washing. The medical evidence was of the view having seeing the surveillance film that there was nothing the matter with her right arm. In my view there is no injury to the right arm.
Mr Anderson says that her lumbar spine is improving and accepted that the x-rays show nothing of significance.
My finding is that the plaintiff suffered a mild soft tissue to the lumbar spine, which has now resolved.
Non-pecuniary loss
The plaintiff claims damages for pain and suffering and loss of enjoyment of life both past and future. I am obliged to assess the amount of damages to be awarded to the plaintiff for non-pecuniary loss as a proportion, determined according to the severity of the loss, of the maximum amount that may be awarded; Motor Vehicle (Third Party Insurance) Act1943 as amended s 3C (2). I am to bear in mind that the maximum amount may only be awarded in a most extreme case: s 3C (3).
In my opinion the plaintiff's injuries are relatively trivial and that the plaintiff has set about to over exaggerate the effects of her accident. In my opinion the plaintiff's claim for non-pecuniary loss should be assessed at 7.5 per cent of a most extreme case. I assess damages at $18,675. As the present deductible is $12,500 it follows that the plaintiff is entitled to the sum of $6,175 for non-pecuniary loss.
Loss of earning capacity
The plaintiff claims past and future loss of earning capacity. The plaintiff was very vague and inconsistent in relation to any past work that she had done. She apparently worked as a dressmaker prior to leaving for Macedonia in 1984. At one stage she said that she had not worked outside the house for an employer after her return in May 1985. Subsequently she stated that she worked two hours a day for a period of 2 ½ months after Eles was born in March 1992 probably when he was two or three years of age. That would mean she last worked in 1995 at the latest. She produced no documentary evidence to support that evidence. As I have pointed out previously it was entirely inconsistent with her answers to interrogatories.
The plaintiff's schedule of future loss of earning is as follows:
"1. The Plaintiff is now aged 40 years having been born on the 3 January 1963.
2. The date of the Trial is 1 December 2003 when the Plaintiff is aged 40 years.
3. The Plaintiff would have returned to the work to age 65 and therefore would have continued to work for another 25 years.
4. The multiplier for 25 years on the 6% table of multipliers is 686.9.
5. The Plaintiff would have worked for 2 hours per day, 5 days per week earning the rate of $14.00 gross per hours totalling $140.00 gross per week or $135.00 nett per week.
$135.00 nett x the multiplier of 686.9 = $92,731.50
6. The Plaintiff is claiming a total sum of $92,731.50"
Having viewed the surveillance film Mr Anderson was of the view that the plaintiff had recovered from her neck and shoulder injury. Dr Warner did not consider that she was fit for work as a cleaner. However, it was his view that her prospects of employment pre-accident were effectively nil and that she was unemployable in the labour market.
Dr Rosenthal was of the view that the collision had imposed soft tissue injury to her neck and back but was of the view that her illness behaviour was completely out of proportion to the injury. Dr Rosen was of the view that her illness behaviour was significant and that was perpetuating her symptoms and there was no physical reason for her pain.
On the basis of those medical opinion I am of the view that there is no reason why if the plaintiff now wished to she could if not now work as a cleaner for two hours per day five days per week.
In any event in my view even if she has an injury it has not been or will be productive of economic loss: Graham v Baker (1961) 106 CLR 340.
The plaintiff returned to Australia in May 1985 and even on her evidence worked for 2 ½ months for a period of two hours per day. That is between May 1985 and her accident on 21 August 2000 a period of 15 years.
I think it unlikely that the plaintiff would ever have contemplated returning to work in any event.
The claim for past and future loss of earning capacity is denied.
Special damages
The claim for special damages was abandoned.
Travel expenses
The claim for travel expenses was abandoned.
Future Treatment
The plaintiff claims future treatment as follows:
"1. The Plaintiff will require approximately 20 sessions of therapeutic massage/acupuncture at a cost of $1,800.00 over a 12 months period.
20 visits in one year x $90.00 per visit = $1,800.00 divided by 52 weeks = $34.61 per week x 50.7 (multiplier for 1 year on the 6% table) = $1,754.72.
2. The Plaintiff is claiming a total of $1,754.72."
This claim is made on the basis of an assessment by Dr Warner. But I prefer the evidence of Mr Anderson, Dr Rosenthal and Dr Rosen that the plaintiff has recovered from any injuries that she may have had suffered in the accident.
In the circumstances I do not allow anything under this heading.
Conclusion
It follows that the plaintiff is entitled to judgment in the sum of $6,175.
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