Volprecht v Sgic No. DCCIV-94-1122 Judgment No. D3517

[1996] SADC 3517

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Judgment of His Honour Judge Lee

Hearing

18/11/96 to 20/11/96.

Catchwords

DAMAGES - PERSONAL INJURY Motor Vehicle accident - aggravation of degenerative progressive condition of cervical spine - condition aggravated also by previous motor vehicle accident - 39 year old female factory worker - non-economic loss s35A scale 6 - $8220 - future economic loss $30000 - other damages agreed.

Representation

Plaintiff DEBBIE ANN VOLPRECHT:
Counsel: MR M KERNOT - Solicitors: FRANK WEBSTR &; ASSOCIATES

Defendant STATE GOVERNMENT INSURANCE COMMISSION:
Counsel: MR R SOULIO - Solicitors: GUN &; DAVEY

DCCIV-94-1122

Judgment No. D3517

20 December 1996

(Civil)

VOLPRECHT V SGIC

Civil

Judge Lee

This is an assessment of damages for injury allegedly sustained by the plaintiff to her neck in a road accident on 23 October 1992.A vehicle driven by the plaintiff was stationary at the intersection of Marion Road and Anzac Highway, Plympton, when it was struck from behind by a vehicle driven by the defendant.It seems that the defendant's vehicle had been stationary also, but had moved forward when the defendant accidentally put his foot on the accelerator.The force of the impact advanced the plaintiff's vehicle by about a metre.The damage to her vehicle was a dented bumper bar and a broken tail light.

The plaintiff injured her neck in a more severe rear end collision three years earlier, and the role of that accident was an important, if not the major, issue at the trial.

The plaintiff is 39 years of age.She had a troubled childhood, and left school at the end of year 8.She is the single mother of a 14 year old son who suffers from a behavioural disorder.She has never had any difficulty finding work.For a period before the first accident, she worked 12 hour days and 7 day weeks with Pirelli Cables.Her duties with Pirelli Cables included the operating of injection moulding and cotton braiding machines and the driving of a fork lift.She needed extra earnings from overtime to buy a house and to pay for the special needs of her son.

The first accident occurred on 20 September 1989.The plaintiff's vehicle sustained substantial damage to the rear, and was written off by her insurance company.She was absent from work for about five months.Her claim for damages against the other driver was eventually settled in July 1992.

In March 1992, the plaintiff took a second job with a meat packaging company called Chisholm Manufacturing.By this time, her son required special tutoring in a private school, and there had been a reduction in the overtime available to her at Pirelli Cables.She was employed by Chisholm as a cleaner and tea lady.Her cleaning duties included the sweeping and mopping of changerooms and toilets.Her hours were 8.30 am (now 7.30 am) to 1.30 pm.Her hours with Pirelli Cables became 3.00 pm to 11.00 pm plus overtime on Friday nights.

The plaintiff was driving to her work with Pirelli Cables at the time of the second accident on 23 October 1992.She felt tingling down her right neck and shoulder and into her fingers.She continued her journey, and worked on light duties for the whole of a six hour shift.She called at the Queen Elizabeth Hospital on her way home.Her neck was Xrayed and she was given medication. She consulted members of the Seaton Medical Centre on successive days, namely Dr Vinci on 26 October 1992 and Dr Ierace on 27 October 1992.Dr Ierace prescribed medication and physiotherapy.She was away from her work with Pirelli Cables for two weeks, and returned on reduced, but building up over a few weeks to full, hours and duties.She continued her work with Chisholm except for, she thinks, a couple of days immediately following the second accident.She received income maintenance from Workcover.

The plaintiff was made redundant in her job with Pirelli Cables in July 1993, shortly after aggravating her condition whilst manoeuvring a drum of cable weighing 250 kilograms.She looked for other work.After a number of applications and interviews over a five week period, she joined the employment of Kelvinator.Her duties and hours were much the same as with Pirelli Cables. She continued with Kelvinator, albeit with difficulty, until 24 April 1996 when she was again retrenched.Again she looked for other work.After about seven or eight weeks, employment agencies placed her with Southcorp in work involving the assembly of gas heaters for four weeks and then with Plastech in injection moulding work.Her placement with Plastech was and remains on a day to day basis, and there have been gaps of one week on one occasion and two weeks on another.She still has intermittent symptoms in her neck, shoulder and arm. She also experiences occasional headaches and a constant burning sensation between her shoulder blades.

The parties called a number of medical witnesses and a number of medical reports were tendered by consent.The weight of medical opinion is to the effect that the plaintiff suffers from long standing disc degeneration at the C5-6 and C6-7 levels of her spine.I am content to adopt the description of the orthopaedic surgeon, Dr Orso Osti, namely"disc protrusion at C5-6 and C6-7, more marked on the right side and causing slight nerve root impingement at this level".

The plaintiff was referred to Dr Osti by another member of the Seaton Medical Centre, namely Dr Fantasia, in August 1995.She saw Dr Osti again in February and March 1996.Dr Osti was a thoughtful and convincing witness, and I consider that his evidence sits comfortably with the evidence as a whole.Dr Osti considers that both accidents aggravated the progressively degenerative condition of the plaintiff's cervical spine.He assesses overall loss of cervical spine function at 30%, of which 20% is attributable to the long standing degenerative condition as aggravated by the first accident and the remaining 10% is attributable to the aggravation of the second accident.Dr Osti considers that the plaintiff is capable of, but should avoid the risk of deterioration associated with, prolonged overhead work, repetitive heavy lifting over 15 kilograms, repetitive stretching with either arm and prolonged driving or being a passenger for prolonged distances.Dr Osti considers that the plaintiff is not sufficiently disabled to justify surgical intervention which would take the form of decompression and stabilisation.

The plaintiff's case may be summarised in this way.She has a long standing degenerative condition of her cervical spine.Both accidents caused aggravations of the degenerative condition.She did not recover entirely from the first aggravation, and some neck, right shoulder and right arm pain persisted.She was able, however, to work long hours and to cope with her duties without medical treatment or loss of time for a number of months prior to the second accident.The neck, shoulder and arm symptoms which followed the second accident have persisted to this day, and were and remain worse than the symptoms which followed the first accident.

The case for the defendant is that the plaintiff's present condition and level of disability would be the same irrespective of whether the second accident caused any permanent aggravation or not.Counsel for the defendant points to the long standing nature of the degeneration, to the relatively minor impact occasioned by the second accident, and to statements which the plaintiff made to Drs White, Stevenson and Kutlaca in 1992, when she was referred for medico-legal purposes in connection with the first accident, about the then level of her symptoms.

The plaintiff impressed me as a person and as a witness.She had and retains an extraordinarily high motivation to work notwithstanding her pain and disability.She gave her evidence in a straight forward manner without any apparent attempt to exaggerate or embellish.Although her recollection of the history of her symptoms was not clear and consistent at all times, perhaps this is scarcely surprising in view of the number of occasions she has been called upon to recount her problems to doctors and lawyers over the seven or so years which have elapsed since the first accident.

The plaintiff's case is supported by a comparison of her medical history immediately before with her medical history immediately after the second accident.From 28 June 1991 to the date of the second accident, she visited her general practitioner on 10 occasions for reasons other than neck and shoulder pain.From the second accident to 19 January 1993, she visited her general practitioner on 8 occasions with respect to her neck and shoulder. From the second accident to 21 June 1993, she received physiotherapy once or twice a week for her condition.

I am satisfied that, from time to time between the first accident and the present, the plaintiff has experienced symptoms in her neck, right shoulder and right arm in consequence of disc degeneration at C5-6 and C6-7 and aggravations thereof caused by the first and second accidents.I accept the plaintiff's evidence that since the second accident she has been more seriously disabled than before.

Dr Osti suggested what seems to me to be a logical and sensible basis for assessing the impact of the second accident upon the plaintiff's earning capacity:

"So I will accept the fact that it is possible that she would have ended up in the same sort of situation that she is now, even if she hadn't had that rear end collision, but the fact is that she did have a rear end collision and it is likely, that is my interpretation, that even in the presence of a high possibility of her developing the same symptoms, that the accident has moved this type of scenario much earlier in time than would have otherwise happened."

As I understand Dr Osti's subsequent answers, without the second accident, the plaintiff would probably not have arrived at her present level of disability before her 50th birthday.On this approach, and given that she is now 39 years of age, the effect of the second accident has been to accelerate the natural progression of the degeneration by no less than 11 years.

Notwithstanding Dr Osti's guidance, the evidence overall does not admit of other than a broad axe or global approach to the assessment.The plaintiff's motivation and determination should see her remain in two jobs in the short term.In the medium term, however, and within the abovementioned 11 year period, she may well be forced to reduce her hours and/or to look for work which is less physically demanding.A prospective employer may entertain reservations about taking her on.Of course, part only of the restrictions upon her employability in the short to medium term can be laid at the door of the second accident.Her pre-second accident degenerative condition was not asymptomatic.Moreover, even in the absence of the second accident, she might have suffered non compensable aggravations with consequential loss of time from work.The assessment must be moderated to reflect this and other contingencies and the fact that the plaintiff is to receive a present payment for a future loss.

I assess loss of future earning capacity at $30,000.

The plaintiff's past loss of earning capacity has been agreed at $1695.57, and her special damages have been agreed at $7524.73.I assign the numerical value of 6 to her non-economic loss.The prescribed amount is 1370.So the award under s35A of the Wrongs Act 1936 for non-economic loss is $8220.I allow the notional sum of $250 for future medical expense.

In summary, the components of the award are as follows:-

non economic loss$8,220.00

loss of earning capacity

past$1,695.57

future$30,000.00

future medical expense $250.00

special damages$7,524.73

$47,690.30

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There will be judgment for the plaintiff accordingly in the sum of $47,690.30