Vo v Reeve

[1991] TASSC 146

Serial No B32/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Vo v Reeve [1991] TASSC 146; B32/1991

PARTIES:  VO
  v
  REEVE
  MOTOR ACCIDENTS INSURANCE BOARD

FILE NO/S:  2868/1984
DELIVERED ON:  14 June 1991
JUDGMENT OF:  Crawford J

Judgment Number:  B32/1991
Number of paragraphs:  44

Serial No B32/1991
List "B"
File No 2868/1984

VO & ORS v REEVE
and the MOTOR ACCIDENTS INSURANCE BOARD

REASONS FOR JUDGMENT  CRAWFORD J

14 June 1991

1. At about 9.30pm on 26 October 1981 members of the Vo family suffered injuries in a motor vehicle accident in Hobart. Liability has been admitted and damages are to be assessed.

HOANG PHU VO

1. Mr Vo complains of almost continual back pain, headaches and chest pain since the accident. His credit was difficult to assess because of his difficulties with the English language. The assistance of an interpreter was needed at times. I have felt it important to consider the content of his evidence with a sympathetic ear because of the language difficulty. Notwithstanding this I have been left with considerable doubts that the accident has caused long lasting problems of any severity.

1. Mr Vo was born in South Vietnam on 12 April 1953 and educated to the age of 18. He married his present wife in 1972. In 1970 he was conscripted into the Air Force where he remained until 1975. He became a sergeant in charge of 12 men. He spent two years in an office and over two years doing more physical work. In 1975 North Vietnam took over the country and he spent one year in a "re–education" camp engaged in labouring work growing rice, tea and corn. From about 1976 to 1978 he worked on his father–in–law's rice farm. His evidence was of hard work involving a day of about 11 hours with much bending and carrying of rice. After hard work he had back pain for a few hours which required no medication, he said.

1. From 1978 to 1980 he worked his own small boat delivering rice and vegetables. On most days this work included loading and unloading bags of rice weighing about 50 kilograms, more or less. Once again he said that back pain was occasioned with hard work, but the pain did not last into the next day, nor did he require medication for it.

1. In 1980 he and his family left Vietnam. They spent some months in a Malaysian refugee camp. While there he helped build some timber houses and after heavy work he once again suffered back pain which lasted no longer than a few hours.

1. The family arrived in Hobart in October 1980. I accept the evidence of Mr Breaden that they lived in a Warwick Street house for about six months and then lived with Mr and Mrs Breaden from about April 1981 until July 1982. Mr Breaden assisted Mr Vo to obtain casual gardening work at private homes. Again with the assistance of Mr Breaden he obtained work for about three to five months at the Hobart Pacific Motor Inn as a gardener and cleaner. Mr Vo said that he had some back pain when working hard and if it was very bad he would take a day off. He took about four days off altogether. He did not seek medical treatment or use medication, he said. That employment was terminated by the employer prior to the accident. I find that the evidence of time off work because of a back problem, prior to his accident, of considerable significance.

1. On 26 October 1981 the accident occurred. Mr Vo does not remember being injured. His memory commences with finding himself in hospital. He said he had terrible back pain, chest pain and difficulty breathing. He had a laceration to his forehead above the right eye. The resultant scar is visible but not disfiguring. It appears to be about two or three centimetres long.

1. He was discharged from hospital at 6am on the next day and went home in considerable pain. The evidence of Mr Vo and Mr Breaden suggests that Mr Vo spent perhaps a month or more in bed for most of the time. He said he had back and chest pain and a continuous headache. Others had to help him in and out of bed and to bath and shower him. Mr Breaden's evidence confirmed this. He then mobilised but his evidence was of continuing pain ever since and some disability. I will return further to his evidence in due course.

1. The records of the Royal Hobart Hospital are significant. Once again I must be careful to take into account the language problems which might have made it difficult for Mr Vo to communicate what his symptoms were, but on balance I accept the basic picture presented by the records. They show that he was admitted complaining of severe back and chest pain but no loss of consciousness, and no reference being made to a headache. A 3.5 centimetre laceration on his forehead was noted and sutured. He complained of difficulty in breathing which was associated with his chest pain. X–rays revealed a fracture of one left rib and a probable fracture of an adjacent rib. It was noted that he was tender in the thoracic spine but an x–ray revealed no injury.

1. He returned to the hospital on 28 October. It was recorded that he still complained of chest pain and his chest expansion was very poor. He was tender in the chest. The wound in his forehead was moist. On 2 November the sutures were removed. On 12 November he presented complaining of pain in the left side of the chest. He was given Panadeine. It was noted that he had no other problem. There is a note in the record that he had pains in the base of either his back or neck and headache but as it has been crossed out with the word "incorrect" I must ignore it. On 18 November the record showed that he was "better". On 5 February 1982 it was recorded that "headaches from car accident still persist" and that he "says now head aches more often than before" and were "worse when he yells at the kids". The diagnosis was tension headaches and he was told to try and relax his neck muscles and take Panadeine.

1. Over three months later, on 21 May 1982 he returned to the hospital again with a complaint of occipital headaches and soreness in his right trapezius muscle, but "no other symptoms". It was noted that he worked part time in a market garden. The diagnosis was "? tension headache ? migraine" and he was directed to take Panadeine and Diazepan.

1. In summary the records of the Royal Hobart Hospital make it appear that following his original discharge on the morning after the accident he made no complaint of back pain, his complaints of chest pain ceased about a month after the accident and although there was no evidence of headaches immediately following the accident, he began to complain to the hospital about them a little over three months later, and when he did he related them to the accident. I do not accept the evidence of Mr Vo that he told a hospital doctor on five or six occasions that he had pain in his back nor that pain relief medication was prescribed for that condition. The fact that those complaints were not recorded persuades me that I cannot accept him in this regard.

1. His evidence was that before the accident he worked two or three days a week in the Breaden's vegetable garden and I accept that. However he said that following the accident and up until July 1982 he was unable to do anything in the garden except prune flowers. That activity, he said, caused him terrible chest and lower back pain which forced him to rest and take tablets. I have difficulty believing that such light activity would have caused such a severe result. Mr Breaden gave evidence of greater activity. He said that Mr Vo also harvested vegetables two or three times a week for, at the most, half an hour following which he would rest. I accept that that occurred in the few months following the accident at least.

1. In July 1982 the family moved to Melbourne. Mr Vo was unable to obtain employment until about February 1985, when he commenced work with a tram authority. His time was spent in removing and replacing the covers of electrical boxes weighing seven to ten kilograms and picking up papers with a pointed stick. During the three months of that job until a wrist injury effectively brought it to an end, he had two or three days off work because of low back pain. This is consistent with time off work for back pain in 1981, prior to the accident. I am not persuaded that the accident was the origin of it. On the evidence I am satisfied that his back complaint originated prior to the accident and only to a moderate extent has his present back condition resulted from the accident.

1. An orthopaedic surgeon, Mr Binns, gave evidence that Mr Vo's complaints of back pain are consistent with a derangement of a lower lumbar disc. Another orthopaedic surgeon, Mr Browne, did not consider that there was sufficient evidence to say one way or the other. Both surgeons agreed that one must rely completely on the history and symptoms as described by Mr Vo and there were no objective signs to prove or disprove the matter. Mr Binns said that the back condition could have been caused by a motor vehicle accident or by heavy lifting over a prolonged period. Mr Binns agreed that the history suggested that the back was not normal before the accident and that if the accident aggravated the condition permanently he would have expected the pain to be present in the period of six months immediately following the accident rather than commence after that time. Mr Browne thought that Mr Vo's history of four days off work from Hobart Pacific suggested a pre–existing problem.

1. About six months before the trial Mr Vo commenced work for a Melbourne garment manufacturer, picking threads off garments, cleaning and sweeping up. The work is only for three or four days a week for about six hours each day. He said that he has had four or five days off work because of lower back pain and headaches.

1. His evidence was that in Vietnam he played a lot of tennis and following his move to Melbourne he has played the game once or twice a month. He said that he does not run at all to hit the ball but he gave no reason why he could not do so. Neither surgeon could verify such an inability and Mr Binns expected that he would be able to run upstairs despite his back complaint. In this regard I accept the evidence of a private investigator, Mr Gard, that on 14 November 1988 he observed Mr Vo walking and running for short distances without apparent discomfort. The running was motivated by heavy rain. Mr Vo ran from a taxi to a doctor's surgery, running up three steps in the course of doing so. He ran across a street and he ran from a house to a vehicle. The detail of his evidence and the manner in which he gave it led me to conclude without hesitation that Mr Gard was honest and accurate. Of course his evidence has only limited value, his observations being brief.

1. Most of Mr Vo's evidence about pain seemed to be directed to his back complaint. However, he also gave evidence that he is still troubled by his chest. On being asked to explain he said that sometimes he feels tired and when the weather changes he has trouble breathing and it hurts to do so. Mr Binns said most people recover completely from fractured ribs within six to eight weeks but some seem to have continuing aches and pains in the chest, off and on, for life. I am prepared to give Mr Vo the benefit of the doubt and find that he does from time to time suffer some minor pain and discomfort as a result of his rib injuries. But I do not accept that they are the cause of tiredness nor that he has significant difficulty with breathing. No medical evidence was called about such matters.

1. Evidence was also given by Mr Vo that he has had headaches every day since the accident. Nothing was asked of him concerning their severity, nor for how long they lasted each day. The first record made by the Royal Hobart Hospital of them was over three months after the accident and it was apparently thought then that they were caused by tension. No medical evidence dealing with headaches was called. I am not prepared to accept, particularly in the absence of such evidence, that the accident has caused ongoing and daily headaches of real severity.

1. There were other aspects of Mr Vo's case which have caused me to doubt its integrity. He gave evidence that ever since going to Victoria (he had lived there for over eight years prior to the trial) he had visited his family doctor once a week and had told him about the trouble he has experienced with headaches, his chest and his back. The doctor was still practising in Melbourne. No explanation was given why he was not called as a witness. I can only conclude from this that he would not have supported Mr Vo's case. Mr Vo said that that doctor referred him to a back specialist in 1987 but not to any other specialist in relation to his head or chest. The back specialist did not give evidence. I find it unbelievable that Mr Vo would need to attend a doctor each week for treatment of complaints arising out of the accident. It was a most unsatisfactory part of his evidence. Perhaps the answer is that he has been treated for some unrelated medical conditions. It is noteworthy that the weekly visits to his doctor were only disclosed in cross–examination and formed no part of his examination–in–chief. Indeed in detailed typed particulars of his claim it was only asserted that he visited a doctor for treatment for his complaints four or five times a year.

1. He also gave evidence that since about three months after the accident he has worn every day an ABC plaster which is a rectangular piece of sticking plaster, across his lower back just above his buttocks. He uses about two a week at a cost of $5.60 each. It helps to warm his back and it helps the pain "a little bit". He also gave evidence of using a $6.00 tin of ointment or liniment every ten days (presumably for his back complaint) and of taking a Chinese herbal potion at a cost of $10.00 on each occasion. That potion, he said, provides pain relief for three or four hours but he did not take it more often than once a week because he could not afford it. I have difficulty believing that he would spend so much on so little relief. He also gave evidence of taking four to six to eight pain killing tablets a day, either Panadol or Panamax, at a cost of $2.90 per week. All of this was said in the course of answering questions about treatment for back pain. On the basis of this evidence he spends $28.30 per week on these forms of treatment and I do not accept that most of that could provide sufficient relief of his back complaints to justify its cost being reasonably chargeable by way of damages against the defendants.

1. There was a passage of evidence which I concluded was evidence of exaggeration or invention by Mr Vo. Shortly after the mid–morning break he was asked by his counsel how many Panadol tablets he had taken that day. He said six, but on his counsel expressing apparent surprise he retreated to four.

1. His wife gave evidence, all of it being interpreted. She said that when he was working on the Air Force base he never complained of back pain or headaches. He had no days off from work in the rice fields because of a bad back or sickness nor when working on his boat. Before the accident she had not seen him take tablets. Following the accident his temperament changed. It became more difficult to live with him. She explained this by saying it is very easy for him to become angry. Little things seem to disturb him more than before and he yells at her and the children more often than before. In the first couple of weeks after the accident he was very weak and needed people to help him to lie down and get up. He often wears the ABC plaster and takes Panadol tablets three or four times a day. He sometimes takes time off from his present employment. He plays tennis with his son about once a week.

1. Mr Breaden gave evidence that prior to the accident Mr Vo worked in the Breaden's vegetable garden four or five days a week for five or six hours a day and never complained of back pain. For a month after the accident Mr Vo needed assistance getting in and out of bed and to shower. After half an hour of gardening he would go inside and rest. After the Vo family left his home in July 1982 he stayed in their Melbourne house for two or three weeks in both 1985 and 1986 and lived with them from 1987 for two years. His observations of Mr Vo were that he never attempted any onerous job, never carried grocery bags for his wife (and would sit in the car outside a supermarket while she shopped), never walked briskly or ran, in fact moved slowly around the house. His temperament was entirely different than before the accident, being easily angered with a tendency to speak to his family in a raised voice. Mr Breaden had not otherwise noticed any restriction in the way Mr Vo walked or moved.

1. The evidence of Mr Vo's son, The Vinh Vo, supported a change of temperament and in particular loss of interest in visiting and outings. He said his father never lifts heavy things and never moves garden rubbish. He said that he cleans the roof gutters once a month, which is something I have difficulty believing. He also said that in the garden his father "just prunes the leaves off the trees, but not low areas which he can't reach or bend down". I have difficulty understanding why any home gardener would prune leaves off trees to the extent that it should be worthy of comment. The son also said that after twenty to thirty minutes of tennis his father gets tired and when they get home he immediately sits down and rests. Although the son could walk to the tennis courts within half an hour he said it would take his father an hour.

1. On the evidence I make the following findings. Mr Vo suffered substantial pain, discomfort and disability for over a month after the accident, and for a few months thereafter suffered significantly. But by the time he moved to Melbourne in July 1982 the results of the injuries had largely settled.

1. He has occasional pain and discomfort in his chest because of the rib injuries. I do not accept that those injuries have caused tiredness or any real difficulty in breathing.

1. A pre–existing back complaint was aggravated by the accident and permanently so, but not to the extent claimed by him. It has caused a very small decrease in his earning capacity. He may miss a few more days of work than he would otherwise have done. In this regard he had only been able to work for less than one year in the period of eight years following his move to Melbourne. This difficulty in securing employment was not associated with the injuries he sustained in the accident. I find that because of those injuries he may in the future have an occasional day off from whatever employment he is able to obtain and hold, but they will not prevent him from obtaining or holding employment. He has some increased back pain and discomfort and it is reasonable that he should be compensated for the cost of some medication and other treatment. I will allow, averaged over a period of a year, $6.00 per week in this regard for the past and the future. I am not persuaded that the accident caused a need to take medication or other forms of treatment every day of the year however.

1. Particularly in the absence of medical verification, I do not accept that his complaints of ongoing headaches, change of temperament, slowness and listlessness have their source in the accident.

1. No evidence was given of any need for him to seek medical treatment and no allowance in this regard will be made.

1. The assessment of damages will be as follows:

General damages for pain, suffering and loss of amenities  $10,000

Cost of medication and other treatment

  

Past  $ 3,000

Future  $ 7,000

Loss of earning capacity  $ 1,500

Total  $21,500

HH THUY VO

1. She claimed no special damages. She was aged about 3 years at the time of the accident and was 12 years old at the time of the trial. She has no memory of the accident, nor apparently of her injuries and treatment.

1. She was taken to the Royal Hobart Hospital suffering from a laceration near the corner of her right upper lip. Sutures were inserted. It was admitted by counsel that the sutures were removed the following day. There was no evidence of further treatment. The balance of the evidence concerned the permanent scar which remains.

1. The scar will not fade or worsen in the future. I accept a surgeon's report which states:

"On examination in my consulting rooms on 27th July, showed that Miss Vo has an oblique scar measuring approximately 1½ cm in length in the corner of her right upper lip region. The scar is obvious only because of the direction of the scar. There is no evidence of step deformity along the vermillion [sic] border and there is no scar adhesions. There are no palpable nodules underneath the scar.

I consider the scar satisfactory and there was no indication to do a scar review at the time of the consultation, however this was suggested to her father that I would like to see her again when she is 14 or 15 years of age for further assessment and if the scar is still obvious then, it can be improved by a review operation."

1. The parties agreed that surgery will not result in any improvement in the appearance of the scar. It was also agreed that the scar runs slightly into the lip causing a break in the membrane of the lip. This could be corrected by plastic surgery at a present cost of $950. The surgery would not require overnight admission to hospital. I had difficulty seeing what was being referred to when I inspected the scar. I find that surgery is unlikely to be wanted by Thuy and note that she also considers it unlikely.

1. She complains that the scar itches a couple of times a week for an hour at a time. Scratching it does not stop the itch.

1. Thuy's evidence was that the scar worries her very much from a cosmetic point of view. Two of her school mates tease her, referring to her as "scar face". I inspected the scar.

1. It was visible but not ugly. Its colour was quite good. It constitutes a slight disfigurement but certainly does not warrant the nickname "scar face".

1. There was no evidence of pain or suffering immediately following the injury.

1. She is a pretty girl. If the scar concerns her later in life I have no doubt that makeup could make the scar difficult to see. I asses her damages at $4,500.

HH TRINH VO

1. She was almost seven months old at the time of the accident and naturally remembers nothing of it. She therefore did not give evidence.

1. She was taken to the Royal Hobart Hospital following the accident and discharged home with her family at 6am the following day. Her parents' observations of her over the next two days or so were that she was crying much more than usual, one of her legs was getting bigger and she could not move it. She was taken back to hospital on 28 October and discharged on 11 November 1981. X–ray revealed an undisplaced fracture of the right femur. She was placed in traction. The Royal Hobart Hospital recorded that she was happy and made satisfactory progress. Her mother took her back to the orthopaedic department on 23 November and the following record was made:

"She returns today with mother saying she is already trying to stand on the leg and is crawling around without any obvious discomfort. An x–ray taken of the leg at the end of the period in traction showed strong evidence of union."

1. Trinh therefore had some pain for a few days and the discomfort of traction in hospital over a period of two weeks. It appears likely that by the time she was discharged from hospital she had made close to a complete recovery. No special damages are claimed on her behalf. I assess her damages at $1,250.

SUMMARY

1. There will therefore be judgment for the first plaintiff, Mr Vo, against the defendants for $21,500. There will be judgment for the fourth plaintiff, Thuy Vo, against the defendants for $4,500. There will be judgment for the fifth plaintiff, Trinh Vo, against the defendants for $1,250.