WILLIAMS v Keddie - [2000] WADC 236

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: WILLIAMS -v- KEDDIE [2000] WADC 236

CORAM: CHARTERS DCJ

HEARD: 18-20 SEPTEMBER 2000

DELIVERED : 26 SEPTEMBER 2000

FILE NO/S: CIV 4895 of 1998

BETWEEN: KAREN DAWN WILLIAMS
Plaintiff
AND
GRAEME JOHN KEDDIE
Defendant

Catchwords:

Damages - Turns on its own facts

Legislation:

Motor Vehicle (Third Party Insurance) Act

Result:

Damages awarded: $12,000

Representation:

Counsel:

Plaintiff: Mr G Wells
Defendant: Mr B C Sierakowski

Solicitors:

Plaintiff: Nicholson Clement
Defendant: Brian C Sierakowski

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

CHARTERS DCJ: The plaintiff is a 38 year old chef who claims damages resulting from injuries suffered in a motor vehicle accident on 3 September 1996 ("the accident").
Liability is not in issue.
It appears from a medical report of a neurologist, Dr Knezevic, admitted in evidence by consent of the parties, that the plaintiff was going through a set of traffic lights when the car in front veered to the right. She struck the other vehicle in the rear and was thrown forward and then back. She did not strike her head and there was no loss of consciousness but afterwards complained that she felt dizzy and nauseated and had some neck discomfort. In the following week she developed increasing neck stiffness, neck ache and associated headache. Since then she continued to have neck symptoms, headache and intermittent dizziness.
The plaintiff did not give evidence of the nature of the accident.
In her statement of claim the plaintiff claimed she suffered soft tissue cervical injury and soft tissue injury to the thoracic spine. At the conclusion of the plaintiff's case, in the face of objection from the defendant, I granted leave to the plaintiff to add a further particular of injury - subacromial bursitis with likely supraspinatus impingement in the right shoulder.
The claim of the plaintiff is that she is entitled to general damages for loss of amenities of life and future economic loss.
There is no past economic loss or indeed any other economic loss claimed save for travelling expenses which are agreed at $500.

Facts found

The facts I find proved are these.
Since she was 14 years old the plaintiff has worked in kitchens and restaurants and at the age of 16 was awarded a certificate of competency in cooking. She was married in 1979 and had two children in 1981 and 1984 respectively. Subject to her having the children she appears to have been continuously employed as a chef.
At the time of her accident she was working for the Gull Roadhouse restaurant at Barragup and left that employment in January 1999 to work for the Peninsular Hotel Mandurah. Following a knee injury in October 1998 she did not work till January 1999.
Following the accident, on the same day, the plaintiff saw Dr Broom of the Mandurah Medical Centre and complained of pain in the left side of her neck and upper thoracic spine. She showed some restriction of movement but upon review on 9 December movements had significantly improved with some restriction of rotation to the right persisting. Dr Broom considered that some partial incapacity may persist for a further one to two months and he anticipated continued gradual improvement.
The plaintiff did not see her doctor, or any other doctor, until May 1997 when she complained of significant problems with neck pain and reduced neck mobility. She also complained of episodes of blurred vision and dizziness.
Thereafter the plaintiff saw Dr Knezevic on 19 June 1997 and November 1998.
Because of complaints about her vision she saw Dr Mele, an ophthalmologist, in March 1999. No ocular abnormalities were related to the accident. She latterly saw a general practitioner, Dr Carolyn Richards, from late 1999 or early 2000. She saw Dr John Ker, consultant physician in rehabilitation medicine, in March and April of this year.
On behalf of the defendant, the plaintiff was seen by Mr Edibam, an orthopaedic surgeon, in October 1998, and Dr Rosenthal, a specialist in rehabilitation medicine, on 8 February 2000.
There have been various radiological examinations - x‑ray, CT scan and cranial and cervical MRI.
The plaintiff suffered a soft tissue injury to her cervical spine which initially gave her some discomfort. She did not have symptoms of right shoulder pain either in the shoulder girdle or in the area of the shoulder joint following the accident. I reject the plaintiff's evidence that she suffered symptoms to the right shoulder following the accident and I reject the opinion of Dr Ker that any bursitis in the right shoulder resulted from the accident.
I accept the evidence of Mr Edibam that upon his examination of the plaintiff there was no complaint which was consistent with subacromial bursitis: the plaintiff complained of pain in the shoulder girdle - the muscles around the scapular region but not in the shoulder. I accept Dr Rosenthal's evidence that any bursitis under the subacromion is not trauma related: it was not reported by the general practitioner (there was no right shoulder pain reported until May 1998) and what Dr Rosenthal found were painful muscles above the scapula with no intrinsic shoulder girdle abnormality, nor was there muscle wasting as one would expect to find with a chronicity of that duration. A subacromial bursitis is clinically observable and the plaintiff's pain pattern was not attributable to a bursitis. In order that a subacromial bursitis may result from trauma, there would be a significant jarring force transmitted from the steering wheel to the shoulder - a direct injury to the shoulder joint - or there would have been a direct shoulder contusion, for example, against the side of the car. Of neither of these was there any evidence. Dr Rosenthal's evidence was compelling that this would not be a subtle injury and such an injury would have been reported by the plaintiff and noted by the doctors who saw her.
Dr Ker, in reaching a conclusion of subacromial bursitis resulting from the accident relied upon a report of an ultra sound taken in June 2000 and accepted that the plaintiff had immediate symptoms in the "right shoulder region and particularly in the upper margin of the right scapula" following the accident. The latter was an erroneous assumption.
I have the impression from Dr Ker's report dated 15 April 2000 that the shoulder was not an incapacitating disability. He was more troubled with the plaintiff's "level of balance disturbance".
I find there is no balance disturbance resulting from the accident.
In his evidence Dr Ker said that if the plaintiff were to continue to work she would require treatment for the shoulder - a week or 10 days absence from work for injections of cortisone. In the worst case scenario surgery may be necessary but "that may make absolutely no difference at all".
Having regard to the evidence of Mr Edibam and Dr Rosenthal which I found convincing and accept, I do not accept the opinions of Dr Ker either as to the pathology or the cause of the symptoms. Nor do I accept that there is any significant disability either in the neck or shoulder.
The plaintiff was in employment at the time of the accident, working permanent part‑time four days a week, and her work was not interrupted by the accident. She continued to work after the accident and maintained a capacity for work to the present time.
I accept the evidence of Mr Luff, the plaintiff's employer at Gull Barragup, from 1 June 1998 to the date of cessation of the plaintiff's work in October and then her resignation in 1999. The plaintiff worked in a normal manner without any complaint of painful symptoms. Her duties included preparation of food, cooking for the restaurant, preparing take‑away foods, cleaning the kitchen, including cleaning of benches and stoves, changing of the oil for the deepfryers which involved lifting 15kg weights to shoulder height and assisting the computer operator. She also had to clean and sweep the restaurant floors, wipe tables and stock the shelves of the store when required to do so. She completed these tasks satisfactorily without any sign of disability until she injured her knee in October 1998.
After the plaintiff injured her knee, for which she made a claim for compensation, she did not physically work for Gull Barragup.
I reject the suggestions put to Mr Luff in cross‑examination that he had a reason, by reference to improper conduct by him, to give fake evidence against the plaintiff.
The plaintiff in her evidence spoke of playing competitive darts since the accident and called witnesses who spoke of her disability. If she had any such disability it did not result from the accident and she was in any event well able to compete in this kind of recreation. I think it is likely that later in 1998 she suffered knee problems and perhaps some muscular symptoms in the shoulder unrelated to the accident.
The plaintiff has a cervical spine which is, for her age, remarkably free of degenerative change or abnormality.
The plaintiff's veracity was called in question by the suggestion that she obtained workers' compensation payments to which she knew she was not entitled, for these extended beyond the time when she was without employment - that is she was paid a sum of money representing weekly payments while she was working for the Peninsular Hotel. I find she did accept such payment knowing she had no entitlement to it. That of course does not mean that her description of symptoms and the continuation of these symptoms is untrue but that evidence does bear upon her character generally.

Damages

General damages

The plaintiff suffered some pain and discomfort following the motor vehicle accident having suffered a relatively mild soft tissue injury. She suffered the symptoms related by Dr Broom when he first saw her and these symptoms gradually improved as he anticipated they would. I accept that she may have some continuing slight symptoms of neck pain and reduced neck mobility but these do not seriously interfere with her daily activities. They certainly do not incapacitate her for her work as a chef.
She has said that she gave up horseriding but I find that she did not give up that recreation as a consequence of the accident.
There have been no right shoulder symptoms resulting from the accident nor does she have any symptoms of dizziness, imbalance or blurred vision consequent upon the accident.
The plaintiff is entitled to a relatively modest award and I assess this at no more than 10 per cent of a most extreme case and consequently I award the plaintiff $22,500. From this award must be deducted amount B, $11,000, resulting in a net award to the plaintiff under this head of $11,500.

Future economic loss

The plaintiff is currently not incapacitated for work. There is no indication that in the future the plaintiff may, as a consequence of the accident caused injury, become incapacitated or to some extent incapacitated for work. The accident related disability is likely to improve rather than deteriorate. I accept in this regard the opinion of Mr Edibam that the mild soft tissue injury to the cervical spine should resolve itself.
I do not find that the plaintiff will, as a consequence of the accident, incur any surgical intervention nor will there be the need for further medical treatment, drugs and physiotherapy.
I make no award under this head.

Conclusion

I award travel expenses, as agreed, of $500.
In the result I award the plaintiff $12,000.