Wieland v di Tullio
[2000] QDC 227
•1 August 2000
DISTRICT COURT OF QUEENSLAND
CITATION: Wieland v di Tullio & Anor [2000] QDC 227 PARTIES: TERRI NADINE WIELAND
Plaintiff
And
DAVID di TULLIO
First Defendant
And
SUNCORP GENERAL INSURANCE LIMITED
Second DefendantFILE NO/S: 731 of 1999 DIVISION: Civil Jurisdiction PROCEEDING: ORIGINATING COURT: District Court DELIVERED ON: 1 August 2000 DELIVERED AT: Brisbane HEARING DATE: 19, 20, 21 July 2000 JUDGE: Judge Forde ORDER: 1. JUDGMENT FOR THE PLAINTIFF AGAINST THE SECOND DEFENDANT IN THE SUM OF $63,680.00
2. IT IS ORDERED THAT THE SECOND
DEFENDANT DO PAY THE PLAINTIFF'S COSTS
OF AND INCIDENTAL TO THE ACTION TO BE
ASSESSED INCLUDING RESERVED COSTS IF
ANYCATCHWORDS: Negligence - personal injuries - 34 year old female 10% neck disability - pre-existing migraines - personal assistant/secretary.
Hulett v Hills Industries Limited (Pratt Q.C. DCJ unreported 31 February 1996)
COUNSEL: Mr P Feely for the plaintiff
Mr R Dickson for the first and second defendantsSOLICITORS: McInnes Wilson for the plaintiff
Suncorp Metway for the first and second defendants
INTRODUCTION
The plaintiff, Terri Nadine Wieland, suffered personal injuries in a motor vehicle accident on 12th December, 1997. The vehicle in which she was travelling was struck from behind by a Mitsubishi Cordia driven by the first defendant, David di Tullio. The second defendant, Suncorp General Insurance Ltd. is the licensed insurer of the said Mitsubishi. Liability had been admitted. As a result of the accident, the plaintiff suffered a whiplash injury and related problems.
NATURE OF INJURIES SUFFERED
The plaintiff gave evidence that she initially started to feel the pain down the back of her neck. By the time that she arrived at work she felt discomfort in the shoulders, back of the head and the neck and also a headache. She attended her general practitioner, Dr Fletcher, that day. At the suggestion of her employer she went to an acupuncturist that afternoon. She attended upon the acupuncturist for the next two months. The day after the accident, she said that she had continuous pain in the back of her head and felt “headachy”. On 14th November, the plaintiff again attended Dr. Fletcher. She was suffering headaches, pain to the shoulder and neck, and she had a sore right foot and left wrist. The latter two symptoms did not continue for long.
It is of some consequence that after the 14th November, 1997, Dr. Fletcher continued to treat the plaintiff, but not in respect of anything to do with the accident until May, 2000. In a report dated 18th February, 1999, Dr. Fletcher wrote:
“I had been the usual treating General Practitioner and I could not
identify any predisposing or aggravating factors.
I would assume that she should make a full recovery from the above, based on my two consultations with her at the time and that she should resume full work and social activities.” (Exhibit 2).
On an ongoing basis, the plaintiff complains of the ache to the back of her neck being aggravated by working on a computer, doing a lot of word processing work. In fact she said that usually some 90% of her time as a personal assistant or secretary was spent on word processing. She continues to suffer neck ache every fortnight for two to four days when it is quite severe. She is then forced to rest and lie down. It was not until she saw a neurologist in relation to a medico legal report that she was advised to see a physiotherapist. This occurred in November, 1999, some two years after the accident. No other treatment was received apart from the acupuncturist. From November, 1999, she has seen the physiotherapist, Mr. Cameron Lillicrap, on a fortnightly basis. She says that this relieves the pain for some days.
The plaintiff had suffered from migraines before the subject accident. She had received treatment from Dr. Fletcher in 1995 for migraneous aura. This included symptoms of pain in the neck, pressure over the forehead, tingling to the face and scalp, and blurred vision. The plaintiff suffered similar symptoms after the accident. Prior to the accident, the plaintiff said that she would suffer from migraines about once per month. The plaintiff says that she suffers migraines about once per fortnight now. Her evidence in that respect is supported to a large extent by her husband, Mark Wieland. He carries on business as an electrical contractor. The plaintiff works now in a part time capacity for that business. The plaintiff gave evidence that the reasons for leaving her employment at Legal Eagles after the accident was because of her problems resulting from the accident, and also to help her husband in his business. By working part time, she had more flexibility to lie down to deal with her migraines. I find that she probably has had to take an extra day per fortnight off to deal with her migraine. However, there are other factors apart from the accident which have to be taken into account apart from the accident as being causative of her ongoing problems. I do not accept that some weeks she might have to have four days off per week as a result of symptoms suffered in the accident. Such a finding would be inconsistent with her post-accident work history, and the assessment by Ms Lau, the occupational therapist.
From May, 2000, Dr. Fletcher prescribed Feldane, Celebres and Diazaphan over a period of two months up until trial. The plaintiff did not seek any treatment from anyone apart from some acupuncture and physiotherapy as discussed. It is difficult to be satisfied that the accident was an ongoing cause of the problems which the plaintiff complained of some two and a half years after the accident, and in respect of which she had not complained to her general practitioner for such a long period. He had continued to treat her for other unrelated matters. In any event, the plaintiff had suffered similar symptoms in 1995 at least in respect of the migraines.
The plaintiff’s counsel contends that the plaintiff was a stoic person who wanted to deal with her problems in a conservative manner and that is the reason that she did not seek medical treatment during that period. It is true that she did complain to Dr. Pentis in February, 1998 of symptoms of migraine. This was followed by no further treatment until May, 2000, except for some acupuncture in March, 1999. The latter treatment was not specifically proved to be related to the migraines. In fact, in February, 1999, the plaintiff worked with Mr. Derek Klist in a temporary position and requested that she be employed in a full time position which was then available. He appointed another person who was better qualified. This aspect of the evidence is significant. By this time, the plaintiff had the perception, at least, that she was capable of full time employment. Her migraines did not seem to disqualify her as far as she was concerned.
NATURE OF THE MEDICAL EVIDENCE
The plaintiff was seen by Dr. Fletcher in November, 1997 as discussed. Thereafter she received some acupuncture. She continued to see Dr. Fletcher between February, 1997 and February, 1999, but not in relation to the symptoms related to the accident. There were no consultations between February, 1999, and May 2000. In May, 1998, she was examined by Dr. Tomlinson, a neurosurgeon. She continued to be troubled by neck pain and related headaches. She made no mention of migraines. The plaintiff told Dr. Tomlinson that she stopped work at Christmas, 1997 because of her neck pain. She complained that if she sat for too long that it aggravated her symptoms. Dr. Tomlinson diagnosed her condition as a whiplash injury. He assessed the plaintiff with a 10% whole body permanent partial disability relating to her cervical spine including headaches (Exhibit 1). From what he was told, Dr. Tomlinson was of the view that the plaintiff’s symptoms were more consistent with a late whiplash syndrome. No symptoms relating to a migraine were reported to him. This is another reason why one cannot be satisfied about the accident being causative of the ongoing symptoms relating to migraines.
In January, 1998 and September, 1999, the plaintiff underwent abortions. There were complications following the first abortion. Further tests and surgical procedures were required between January and March, 1998. The plaintiff accepted that some emotional stress was involved for short periods of time. I find that this would have contributed to migraines. No mention was made of the abortions to the medico-legal practitioners as the plaintiff did not see it as relevant. Dr. Tomlinson was of the view that the plaintiff fell into the category of persons who did not recover from symptoms after suffering a whiplash injury. His assessment was exclusive of the migraines being related to her ongoing disability. I accept his evidence. It is supported to a large extent by Dr. Pentis, an orthopaedic surgeon.
Dr. Pentis saw the plaintiff on behalf of the plaintiff’s solicitors. He provided two reports being Exhibits 12 and 13. Dr. Pentis saw the plaintiff on 2nd February, 1998 and 3rd December, 1998. He was called by the defence for obvious reasons. He assessed the plaintiff’s disability as a 5% loss of the efficient function of her spine as a whole. He said that it was unlikely that she would require any operative treatment or major forms of management long term. Gentle exercise was recommended. He believed that it was unlikely to give her major problems with her work activities. It would affect her doing strenuous recreational and sporting activities. The plaintiff gave evidence that she had tried doing scuba diving and horse riding after the accident but did not persist. Although Dr. Fraser limited the permanent partial disability at 2% and Dr. Weidmann at 3% of the efficient bodily function, I accept the assessment of Dr. Tomlinson that considering the headaches that a 10% disability is a fair assessment. Dr. Pentis conceded a disability of up to seven and one half percent. I accept the general view that an injury of this nature may aggravate pre-existing migraine headaches. The failure to complaint to Dr. Pentis and Dr. Tomlinson in 1998 of the existent of migraines leads one to the conclusion that the accident was not an ongoing cause of the migraines but may have aggravated same for some months only after the accident. The ongoing headaches relating to neck pain are a separate matter.
I find that her symptoms have persisted but not to the extent that she says. In that respect, I accept the evidence of Ms. Lau, who said that the tests performed by the plaintiff were inconsistent with the complaints which she made (Exhibit 9 pp. 9 and 12.). Ms. Lau is an occupation therapist. Her evidence is consistent with the findings I have made in respect of the percentage disability. The plaintiff is able to carry out her work and her domestic chores but on occasions the disability requires her to change position or rest. Ms. Lau stated “that the unpredictable onset of symptoms would not preclude Ms. Wieland from being able to perform tasks, however, having opportunities to pace and manage the symptoms when they arise would be of importance”. I accept that assessment.
Although Dr. Boyce stated that the plaintiff would not be suitable for full time work due to the “lack of predictability of the severe debilitating migraine” (Exhibit 4), there was an acceptance by him that treatment for same is successful in 80% of cases. The plaintiff has yet to undergo such treatment. In any event, the pre-existing condition has, I find, merely been aggravated for a short time as a result of the accident. In his earlier report (Exhibit 3), he stated that her employability had not been affected and that she was able to carry out domestic duties. His assessment of the whiplash injury and worsening of migraine was 10%. I prefer the evidence of Dr. Tomlinson and Dr. Pentis who examined the plaintiff at an earlier point in time and seemed to be more consistent in their assessment.
PAIN AND SUFFERING AND LOSS OF AMENITIES
The plaintiff was born on the 5th day of October, 1966. She is married with no children. As mentioned she has had two abortions. She had suffered from migraines prior to the subject accident but not as regularly or prolonged. It was usually once per month but not it is sometimes fortnightly and for some days. These, I find, were likely to have been related to the accident for some months. Thereafter, I am not satisfied that the frequency of migraines has been caused by the accident. I accept that that she suffers headaches as a result of the neck symptoms. Both in her employment and her day to day living, the plaintiff will suffer symptoms caused by the accident which will require her to take time out to rest or move about at her place of employment. The plaintiff has not been able to engage in scuba diving or horse riding since the accident. I find that that is a direct result of her ongoing neck disability.
The defence rely on a case of Hulett v. Hills Industries Limited (Pratt Q.C. D.C.J. an unreported decision dated 1st February, 1996). The plaintiff was a 45 year old process worker. She had a 10% impairment of neck function. She was able to cope with light sales work or clerical work. General damages were assessed at $15,000.00. The present plaintiff is younger and her impairment is, I find, 10% of the whole body. For the reasons stated, I assess general damages at $25,000.00. I allow interest on the sum of $10,000.00 at 2% for two and two third years. This amounts to $530.00 approximately.
ECONOMIC LOSS
The plaintiff told Ms. Goodwin, an occupational therapist called by the plaintiff, that she had requested part time work with Legal Eagles prior to the accident. Ms. Goodwin was questioned at trial, but asserted that she checked this fact with the plaintiff before writing her report. Therefore, I find, that the plaintiff was not going to work full time but was hoping for part time work so that she could assist in her husband’s business. By February, 1999, she asked for full time work again with the Legal Group International, but with the same immediate employer, Mr. Kliest. The plaintiff now says that she cannot hold down a full time job as a personal assistant/receptionist/secretary. Apart from the migraines, there may be times that the plaintiff has headaches or neck pain which requires her to have some time off work. Certainly, Mr Klist did not observe any disability as at February 1999. Her own perception in February, 1999, was that she was capable of full time work: see also Ex. 15. It cannot be said that if the accident had not occurred that the plaintiff would have been employed full time. In fact, prior to the accident Exhibit 4 shows the following:
Week ended 9th July, 1997 15 hours
16th July, 1997 7 hours
23rd July, 1997 37 hours
30th July, 1997 26 hours
31st Oct. 1997 24 hours
12th Nov. 1997 28.5 hours
Post Accident it shows:
19th Nov. 1997 24.75 hours
26th Nov. 1997 38.75 hours
30th Nov. 1997 38.50 hours
These figures are representative of those periods. It is fair to say that that plaintiff did not decrease her working hours as a result of the accident, at least immediately. She left Legal Eagles in February, 1998. When she saw Dr. Pentis in February, 1998, she did not tell him that she was going to give up work as a result of the accident. In fact, she continued to work with Legal Eagles after he saw her, according to Exhibit 14. She told him that she was working part time, running a business from home, and was coping as it was not heavy work. Ms. Goodwin, an occupational therapist called by the plaintiff, has assessed the plaintiff as capable of light work which is a heavier classification to sedentary work. Ms. Lau was of the opinion that the plaintiff was capable of carrying out secretarial work subject to her migraines. These matters lead me to the conclusion that the plaintiff's evidence as to her capacity to work was unreliable.
I find the following:
a. That the plaintiff is capable of performing the duties required of her as a personal assistant or secretary.
b. That prior to the accident she had decided to work part time as a temporary
personal assistant or secretary.
c. That the plaintiff was wanting to work part-time in her husband’s business as
well.
d. That with appropriate rests or some time off, the plaintiff is capable of full time
work notwithstanding the accident.
e. That in the ordinary course of business although employees need rest time particularly from word processors, the plaintiff would require more frequent rests because of her ongoing neck problems and related headaches.
f. That the effect of the accident on her migraines had dissipated within 12 months of the accident.
In the circumstances, it is difficult to estimate the number of hours per week or days per month. If the plaintiff were to take say half a day per fortnight then her loss would be something in the range of $20.00 per week net. Although after the accident the plaintiff did continue to work longer hours, she did so for a short time. The headaches became more frequent. The period of time from the date of the accident to the present time is two years and eight months. When one looks at the 1996-1997 earnings, the total wages net were $11,342.29. This was before the accident. The 1995-1996 equivalent figure was $21,757.98. It is clear that the plaintiff had scaled back on her work commitments. I accept Dr. Weidmann’s evidence that neck injuries of that nature can aggravate pre-existing migraine headache. At the outside, I find, within 12 months, the symptoms would subside to their pre-accident level, particularly given the history referred to in this case. The plaintiff would have within that 12 months have taken some days off from time to time particularly after she left Legal Eagles. I allow the sum of $5,000.00 for pre trial economic loss. Interest on that sum at 6% for sixteen months is $800.00.
FUTURE ECONOMIC LOSS
Given the findings made above, the sum of $20.00 per week is allowed for a period of 25 years, allowing for the usual vicissitudes of life. Discounting that to present value, the assessment for future economic loss is $15,000.00. The plaintiff may suffer discomfort in her employment apart from some time off, and an appropriate allowance has been made in the general damages.
GRIFFITHS v. KERKEMEYER
Past and Future
Given the finding of a 10% disability, there may be some tasks which the plaintiff has not been able to perform or will not be able to perform. Tasks such as vacuuming, mopping the deck, and cleaning the bathroom may require the assistance of her husband. I allow one hour per week for the past and the future. For the past at the rate of $10.00 for 136 weeks, the sum of $1,360.00 is allowed. I allow interest at 2% for two and two thirds years. That produces a figure of say $70.00. For the future the sum of $12.00 per week for say forty years produces an amount of $10,000.00 allowing for the fact she might have required help from time to time for other reasons.
SUPERANNUATION BENEFITS
The rate of 8% on the sum of $20,000.00 produces a total of $1,600.
MEDICATION/TREATMENT
No sum is allowed for future treatment for migraines for the reasons stated. The plaintiff has attempted to treat her migraines conservatively. Since May, 2000, she has taken some drugs to assist her neck pain. These include Feldene, Celebrax and Panadol. The plaintiff uses a packet per month of the latter which retails at $4.00. The other two cost some $62.00 in total. Valium has been prescribed as well. Also, the physiotherapy may continue if it is of some help. If one allows $2.00 per week in total the present cost is some $1,800.00 over 40 years. Allowing for these different medications from time to time the future cost is assessed at $2,000.00.
SPECIAL DAMAGES
The actual expenditure for medication over two and two third years is assessed at $200.00. Also the plaintiff has incurred some $1,148.00 for physiotherapy, which is reasonable given that the neurologist recommended same. The strengthening exercises should assist. Also there is the sum of $70.00 paid to Dr. Fletcher and the cost of treatment by the acupuncturist, Mr. Vanderzeil. These visits cost some $598.00 and seem to be reasonable and with a view to alleviating the neck problems. A sum of $174.00 was claimed for travelling costs. These seem to be reasonable. The total for special damages is $2,190.00. I allow interest on the sum of $2,190.00 at 6% for 12 months. This provides a figure of $130.00 for interest.
SUMMARY OF ASSESSMENT
Pain and suffering and loss of amenities $25,000.00
Interest 530.00
Pre-trial economic loss 5,000.00
Interest on pre-trial economic loss 800.00
Future economic loss 15,000.00
Griffiths v. Kerkemeyer
Past 1,360.00
Interest on past loss 70.00
Future 10,000.00
Superannuation 1,600.00
Future medication/treatment 2,000.00
Special Damages 2,190.00
Interest 130.00 -------------
$63,680.00
ORDERS:
1. JUDGMENT FOR THE PLAINTIFF AGAINST THE SECOND
DEFENDANT IN THE SUM OF $63,680.00.
2. IT IS ORDERED THAT THE SECOND DEFENDANT DO PAY THE
PLAINTIFF’S COSTS OF AND INCIDENTAL TO THE ACTION TO
BE ASSESSED INCLUDING RESERVED COSTS IF ANY
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