Wiseman v State Government Insurance Commission

[2001] NSWSC 42

CITATION:	Wiseman v State Government Insurance Commission & Anor [2001] NSWSC 42
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20189 of 1997
HEARING DATE(S):	30 - 31 January 2001, 1 - 2 February 2001
JUDGMENT DATE:	9 February 2001
PARTIES :	Janet Aileen Wiseman (Plaintiff) v State Government Insurance Commission (First Defendant) Maurice Campara (Second Defendant)
JUDGMENT OF:	Master Malpass

COUNSEL :	Mr D Cassidy QC/Mr B Ralston (Plaintiff) Mr A C A Bridge SC/S Thode (First and Second Defendants)
SOLICITORS:	Forshaws Neill (Plaintiff) Hunt & Hunt (First and Second Defendants)
CATCHWORDS:	motor accident in Western Australia - claim for damages - law of Western Australia applied - no question of principle.
LEGISLATION CITED:	Motor Vehicle (Third Party Insurance) Act 1943. Supreme Court Rules 1970 Pt 33 r 8A.
CASES CITED:	N/A
DECISION:	See Paragraphs 36, 39, 50 - 53.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 9 FEBRUARY 2001

20189 of 1997 JANET AILEEN WISEMAN v STATE GOVERNMENT INSURANCE COMMISSION & ANOR

JUDGMENT


1   In these proceedings, the plaintiff claims damages. The claim is founded on negligence. It arises out of a motor vehicle accident that took place on the Kwinana Freeway in the State of Western Australia.

2   There are two defendants. Both defendants have the same legal representation. The first defendant is the insurer of the Nominal Defendant. The second defendant was the driver of the vehicle in which the plaintiff was a passenger at the time of the accident. From the evidence, it seems that he has had a long standing relationship with the plaintiff (the nature of which was left unexplained until some brief evidence was elicited in cross-examination towards the end of the plaintiff’s case). In that evidence he was described currently as being a friend.

3   The accident took place at about 7.00pm on 4 April 1994. Although it was still light, the street lights had been put on. The plaintiff was travelling as a front seat passenger in her own vehicle and this vehicle may have had its headlights on. She was wearing a seat belt.

4   At the scene of the accident, the freeway had three northbound lanes and three southbound lanes. The traffic was heavy. The plaintiff’s vehicle was travelling in the centre lane of three northbound lanes. The plaintiff said that it was travelling at about the speed limit (90 - 100 kph). On the inside lane, there was a station wagon with a trailer (which has been described as a “box trailer”). On the trailer, was a crate. The station wagon was travelling at a faster speed and had overtaken the plaintiff’s vehicle. In the outer of the three lanes, there was a Mercedes.

5   The crate bounced off the back of the trailer. In her oral evidence, the plaintiff said that “It spun over and then went down and slid into the front of our car”. The second defendant had applied the brakes. He applied the brakes hard, then eased off a bit and then applied them again. Ultimately, the speed of the vehicle was reduced to about 20 to 30 kph at the time of the collision.

6   The plaintiff gave this evidence:-
“Q. And what did you feel as the vehicle in which you were braked and hit the crate?
A. When he first braked, went forward and hit, the belt clicked or something in the back, and hit and stayed up against the seat and then he braked again, you could feel the jolt.
Q. And you could feel that in your body?
A. Yes.
Q. What about when it hit the crate?
A. Yes, we just went forward again and banged back, hit my head on the head rest part of it. I had a nasty headache from that as well.
Q. Did you feel anything else at that point?
A. Yes, I did feel like a pain, burning pain, that went from about my waist down the back of me, like a stinging, burning pain.”
7   She gave this further evidence:
“Q. And that had the effect of giving nowhere for Maurice to go, but the fact of the matter is that he was in the middle lane and he stayed in the middle lane up until the time he came to a stop?
A. Yes, he did not go into another lane.
Q. There was nothing wrong with the brakes of your car?
A. No.
Q. And he was able to stop in a straight line, was he not?
A. Like, he veered a little bit, swung a bit, that type of thing.
Q. The path of your car, from the time the box came off the trailer, was basically straight forward, remaining in the middle lane the whole time, was it not?
A. It was so fast, I couldn’t say it was overlapped on the lane or anything. I know we had been hit.
Q. And when the car actually stopped, it was pointing straight up the lane, as it were?
A. No, slightly to an angle, not completely straight.
Q. Very slightly?
A. Yes.”

8   For completeness, it needs to be observed that the plaintiff has given many histories of and concerning the accident. The histories are redolent with inconsistency and discrepancy.

9   Following the collision, both the station wagon and the Mercedes came to a stop. In addition, it seems that another vehicle (a sedan) may have also stopped.

10   After alighting from his vehicle, the driver of the station wagon then returned to it and left the scene. His departure was observed and his vehicle was the subject of a short and unsuccessful pursuit by the driver of the Mercedes. The driver of the Mercedes then returned to the scene of the accident and gave a business card to the plaintiff. This card later came into the possession of the second defendant.

11   The plaintiff did not observe the registration numbers of either the station wagon or its trailer. She saw nothing on the crate which gave indication as to its ownership. It seems that she may not have alighted from her vehicle whilst at the scene of the accident.

12   The plaintiff says that her vehicle was damaged. Her observations as to the extent of this damage were made subsequent to the day of the accident. She has given oral evidence as to damage affecting various parts of the vehicle (including the front guard, headlight, the grille and the bonnet). She has given oral evidence as to the costs of the repair being in excess of $1,500. There is little documentation to assist as to the nature of the damage. There is little documentation concerning the cost of the repair work. The vehicle remained drivable. However, the plaintiff has said that it was “kind of driveable”. It could be driven slowly and awkwardly. This evidence did not sit comfortably with evidence given by one of her daughters. It was driven to Subiaco. It seems that it was driveable following some movement to a mudguard. The crate was damaged but not shattered. It was at least empty in part.

13   The accident was not reported to the police. It has not been suggested that the second defendant suffered any injury. The plaintiff did not receive any legal advice until 1995. This advice was given by her present solicitor.

14   After the commencement of the hearing, there was an admission of breach of duty made on behalf of both defendants. This left the questions of causation, due search and inquiry and quantum in issue. At the conclusion of the evidence, the plaintiff conceded that a case had not been made out against the second defendant. By consent, the claim against the second defendant was dismissed. The first defendant then abandoned the issue of due search and inquiry.

15   The plaintiff has given oral evidence. Three of her daughters (Karen Anne Rea, Christine Wiseman and Sandra Lee Platts) have also given oral evidence. The plaintiff’s mother (Mrs Ley) was also called. A traffic injury consultant with medical qualifications (Dr Henderson) has prepared two reports for the defendants. He was called. He gave supplementary oral evidence and was cross-examined. The second defendant did not give evidence and that matter did not excite any submissions.

16   The parties have tendered a significant volume of documentary material (including reports from experts). The quantity of medical evidence tendered by the plaintiff is formidable.

17   This is a case in which credibility has assumed importance. The acceptance of the plaintiff’s oral evidence (and that of other members of her family) is of importance to her case. I have closely observed the demeanour of witnesses during the giving of evidence. In assessing credibility, I have had regard to both demeanour and evidence.

18   Generally speaking, the evidence relied on by the plaintiff has its limitations. There were no independent lay witnesses. She looks to family members to support her case. The family appeared to be very close and I gained the impression that members were keen to do their best to assist the plaintiff’s case. She was not an impressive witness and she has given evidence that I do not accept. At times, her evidence tended to be vague and give less than the full picture. At times, she was prone to embellishment. At times, her evidence was unhelpful. There is an absence of records or other documentation to support such evidence as she has given.

19   The plaintiff has given evidence which stands in conflict with documentation (inter alia Exhibits 1 - 3) and evidence from members of her family. Evidence given by family members in support of her claim also conflicts with documentation. If this oral evidence were to be accepted, it could lead to findings that she had given deliberately false information for the purposes of obtaining sickness benefits. If such findings had been made, I would have had little option but to send the papers to the Prothonotary for reference to the appropriate authorities for further action. Where there is conflict between this oral evidence and that documentation I prefer what appears in the documentation.

20   The plaintiff was born on 24 November 1942 (she was 51 at the time of the accident). She left school at the age of fifteen (before completing her Intermediate). Thereafter, largely, she did some part time or casual work. Her evidence on those matters was lacking in detail. She has been in receipt of a pension (probably sickness benefits or a disability pension or the like) since the early 1980’s. During that time, she has not prepared a tax return. She has been involved in a number of motor vehicle accidents (one history records nine accidents) and other incidents. The evidence suggests an accident prone life. The first accident took place in about the late 1950’s (and she suffered inter alia a compound fracture of her tibia). It seems to have been a serious accident.

21   In 1960, she was married. There were four children of that marriage. All of the children are daughters and are now adults. Her husband left shortly after the birth of the fourth child. The plaintiff managed to support the children. The evidence reveals that she has worked as a sales assistant, at the Royal Easter Show, the Fisher’s Ghost Steakhouse and in 1989 was also involved in a venture with her daughter and her husband at Leppington. This venture folded after about 10 months. It has been said that it was associated with a caravan park and the caravan park changed hands and closed down. Thereafter, she did not work prior to going to Western Australia.

22   In 1992, she went to Western Australia. In September 1993, she acquired what has been referred to as a florist business at the Rockingham Hospital. Save for a couple of months, she engaged in this activity until the accident. Some time after the accident, it came to an end and it seems that it was disposed of at a loss. The reasons for its demise are somewhat unclear.

23   Prior to the accident, she had suffered a variety of medical problems (she has had bladder operations and a hysterectomy and she has suffered from haemorrhoids, irritable bowel syndrome, stress and asthma). Her asthma has persisted and seems to be a serious problem. The problems have led to periods of hospitalisation and the taking of medication. The disentangling of her many problems, accidents and incidents, is not without its difficulties.

24   In addition, it is conceded that at the time of the accident she had a back problem which rendered her susceptible to the injury which she claims was suffered as a result of the accident (a lower back problem). This problem has been described as a generalised degeneration of the spine. It seems that she also had lumbar stenosis at the L4/5 level. It is accepted that there needs to be a discount if she is successful in her claim, because her present condition would not have been suffered but for the pre-existing condition.

25   In 1998, she suffered injury to her cervical spine when she was hit by a shopping trolley. It is conceded that this injury cannot be sheeted home to either of the first or second defendants. It has been the subject of another claim which has now been settled.

26   After the accident the plaintiff said that she was “very upset and shaking and crying” and getting “shaky and trembling”. She said that she thought that it was just shock. She was taken to the home of the second defendant and spent the rest of the week at his place and took medication (panadol). She said that she was upset and had headache and shaking. She said that she had pain in the back and legs. She did not keep an appointment had with Dr Nicholas on 5 April 1994. An explanation has been offered for that conduct. She returned to her home on the weekend. She said that she was experiencing discomfort in her back and legs. She did not seek medical treatment until 18 April 1994, when she went to see a general practitioner (Dr Nicholas). She saw him for review concerning her asthma and she also complained of pain in her right L5/S1 facet joints. He referred her for X-rays of her lumbar spine. These showed degenerative changes in the L4/5 and L5/S1 facet joints. She underwent a facet joint injection L4/5. She made no further attendance upon Dr Nicholas. Dr Nicholas has no record of being informed that she had been involved in a motor vehicle accident.

27   Between July and August 1994, she said that she “was starting to get a little bit uncomfortable again”. There were problems with asthma and emphysema about this time.

28   In August 1994, she returned by car to New South Wales. She said that she experienced discomfort during the trip (inter alia they would have to stop and she would have “a little walk around or say no more to-day”). Initially she went to Coff’s Harbour (where she was treated inter alia for asthma and leg problems). She had a CT scan and an ultrasound examination. There seems to have been a concern about a thrombosis in the right leg. Later, she was referred (by her general practitioner, Dr Yap) to Dr Salmon (an expert in pain management). She came under the care of the late Dr Segalov (and later Dr McDowell). Neither were originally given a history of the motor vehicle accident. She has undergone surgery (including 4 laminectomies, fusion of L4/5 and an anterior microdectomy and fusion). She has had physiotherapy and hydrotherapy.

29   Apart from the short period spent in Coff’s Harbour with one of her daughters, she has lived in a house provided by the Housing Commission at Villawood. The evidence is that she lives alone and that she has a need for care. It is a small house. She is capable of attending to personal care and can provide some services for herself (including some cooking services). She need assistance in inter alia cleaning, shopping and lawn mowing. She had assistance from inter alia Home Care, her daughters and friends and a man does the lawn mowing. She still has her car, but has not driven it since 1999. She commenced to use a wheel chair in 1999. For some time previously she had used a walking stick.

30   Karen Anne Rea gave evidence of two conversations had with her mother following the accident. It is her evidence that during these conversations she was informed of the accident and that her mother had not been feeling well since the accident. Her problems were described as pain in her legs and headaches.

31   Curiously, it was not until about June of 1995, that any medical report records a history of the accident. Whilst the plaintiff maintains that she told at least some of the doctors of the incident, it seems unlikely that all of the pre June 1995 doctors would have made the error of not referring to what would seem to be a very important piece of history in their respective reports.

32 In an Amended Statement of Particulars pursuant to Part 33 Rule 8A of the Supreme Court Rules 1970 filed on 30 September 1999, the plaintiff gave the following particulars of the injuries that she claims were suffered in the accident:-
“ A PARTICULARS OF INJURIES
a. Injury to lower back.
b. Possible crush fractures of lumbar vertebrae.
c. Spinal canal stenosis.
d. Posterior and lateral disc bulging at L3 to L4.
e. Marked posterior and lateral annular disc bulging at L4 to L5.
f. Severe facet joint hypertrophic change.
g. Bony canal stenosis at the invertebral disc level.
h. L4 and L5 nerve root irritation.
i. Subluxation of L4 on L5 secondary to facet joint degenerative change.
j. L5 to S1 posterior disc bulging with facet joint degenerative change.
k. injury to neck.
l. Precipitation of asthma attack.
m. Shock and sequalae (sic).”

The plaintiff has maintained her claim in respect of each of these injuries save for those mentioned in (b), (k) and (l).


33   The plaintiff had X-rays of the lumbar spine on 13 March 1991 (there had been an incident which caused low back pain) and on 18 April 1994 (about two weeks after the accident). The latter X-rays show little degeneration on what had been shown on 13 March 1991. One of the plaintiff’s experts has described the X-rays as being essentially similar to the 1991 X-rays. A CT scan was had on 1 November 1994. It showed a substantial change in degeneration (but Dr Schnier has observed that the lumbar spine had remained fairly constant over the several years of diagnostic testing). There may be a number of explanations for this change (inter alia Dr Henderson has said that they may take place without any “apparent cause”). Dr Schnier was of the opinion that the plaintiff had a propensity to generalised degenerative disc disease at all levels in the spine and that changes in the lumbar spine were not related to the accident. I do not accept the significance which the plaintiff seeks to glean from the radiology.

34   The principal issue in the case is whether the accident caused the substantial injuries claimed by the plaintiff or no injury at all (or alternatively minor injury) as maintained by the first defendant. The plaintiff seeks to recover in respect of a number of heads of damage. These are non-pecuniary loss, out-of-pocket expenses, domestic care and the costs of equipment and services. There is a claim for interest. A foreshadowed claim for loss of earning capacity was abandoned prior to the commencement of addresses.

35   It is common ground that the proceedings are to be determined in accordance with the law of Western Australia and that damages are to be assessed subject to the restriction imposed by the Motor Vehicle (Third Party Insurance) Act 1943.

36   At the outset, it must be borne in mind that the plaintiff bears the onus of proof. In my view, she has failed to discharge that onus in respect of what she has claimed. It seems to me, that she has only established that she was involved in a minor impact front-end accident which caused her injury of a relatively mild nature (which may have seen some aggravation of her pre-existing condition). In time, she may have come to experience like symptoms even without the accident.

37   The effect had by the accident has to be seen inter alia in the context of the longstanding and progressive pre-existing condition and the 1998 incident. Pre-accident, her low back problem was advanced by her in documentation as a condition which played a part in stopping her working and doing things around the home, and enabled her to obtain and retain her pension. Low back pain was a significant factor at least by 1991. She had been experiencing back pain since at least 1982. In 1990 she did not expect to return to work. She suffered significant injury in the 1998 incident and there has been significant deterioration in her condition since that incident (particularly since February 1999).

38   In support of the plaintiff’s claim, the court has been referred to a number of medical reports (including radiology material and reports provided by Dr Yeo, Dr Carroll, Professor Nade and Dr Connolly). In addition, there has been an attack on the reports relied on by the first defendant (including the reports of Dr Henderson).

39   The evidence simply does not substantiate the claim for the specific injuries set out in paragraph 32 of this judgment. At best, the material can be largely seen as giving support for an exacerbation of her pre-existing condition.

40   Many criticisms may be made of the medical material relied on by the plaintiff (inter alia there are problems which arise because of the inaccurate history and there are problems because there is not evidence of matters upon which the opinions are based). Principally, the plaintiff relies on the reports of Dr Yeo. His opinion is beset by the problems that I have just mentioned. Further, he did not have the pre 1994 radiology.

41   In his report dated 15 September 1999, Dr Yeo concluded as follows:-
“Mrs Wiseman has suffered cervical and lumbar spinal injury when involved in the motor vehicle accident which occurred on the 4.4.94. There was no previous history of neck or back problems prior to this accident”.
42   In his report dated 24 May 2000, he observed as follows:-
“As concluded in my report on the 15.9.99 Mrs. Wiseman has suffered cervical and lumbar spinal injury in the motor vehicle accident which occurred on the 4.4.94. I agree with Dr. Henderson’s impression that the unusual nature of the impact injury would most probably have only had a minor direct impact injury transmitted to the patient while restrained in the vehicle. Other forces would have to be considered in that the vehicle presumably was braking and possibly and presumably diverting from the path of travel contributing to a degree of rotational force to the patient’s spine and paraspinal muscles.
While there is evidence of pre-existing degenerative change in the spine, the patient’s history indicates that she was relatively pain free from symptoms relating either to the neck or lumbar spinal regions prior to the injury.”


43   Without intending to be exhaustive, it may be helpful if some specific comment is made in relation to what has been said by Dr Yeo. He was given a very limited past history of injury. He was given a history of her vehicle being hit by a falling crate from a trailer travelling in the opposite direction. The observation that she was relatively pain free from symptoms is contrary to the evidence. The claim for cervical injury was not pressed in this case. The evidence of “other forces” to assist the plaintiff is lacking in this case. I prefer the evidence of Dr Henderson on this matter.

44   Without seeking to be exhaustive, I will also make some specific comment in relation to certain of the other reports.

45   Dr Carroll proceeded on the basis that there was no record of prior conditions. He had a history of an accident which occurred when a container fell off a truck in front and the car ran into this. He considered that there had been a major deterioration of the plaintiff’s condition since 15 December 1998.

46   Dr Connolly prepared a report 16 September 1999. He concluded that she had suffered a very significant aggravation of a previous degenerative condition inter alia in relation to the lumbar spine as a result of the accident and that a number of surgical procedures had been necessary. The only history he was given of prior injury was the accident of 1957. He was not given a history of the incident in 1998. It appears that he did not sight the pre 1994 radiology.

47   In a report dated 29 November 1994, Dr Segalov was given a history of the plaintiff having had nine motor accidents over the last thirty five years. His report records that the plaintiff thought that the first of the accidents initiated her problems and that her back pain had been increasing in the last few months. Dr Salmon records that on 24 November 1994 she complained “of low back and leg pain for many years”. Also, she gave a history of motor vehicle accidents and of injuries including whiplash. In a report dated 11 December 1997 after observing that he was not aware of the accident in April 1994, he expressed the opinion that in view of the pathology and chronic pain syndrome the accident may have aggravated her syndrome. Professor Nade records that she did not have symptoms affecting the lower part of her back and her legs prior to the accident.

48   The plaintiff advanced a claim for a psychological overlay. This was largely founded on a report from Dr Canaris. He made a diagnosis of PTSD. This diagnosis was based on material which lacked evidentiary support. Reliance on this diagnosis was abandoned during submissions. It was then said that the plaintiff suffered from depression because of the accident. I do not accept that the accident could be the cause of any significant depression.

49   Dr Henderson was a most impressive witness. Largely, I find his opinions persuasive. Whilst the plaintiff’s case fails because of weaknesses in the plaintiff’s material, if it be necessary to say so, I prefer the views of Dr Henderson to the competing views found in the plaintiff’s material.

50   The plaintiff’s case for non-pecuniary loss was put as high as 75% and as low as 25%. In addition it was conceded that a discount of 10 - 15% would also have to be allowed. The first defendant’s position has been stated in a written outline of submissions. It seems to me that the appropriate figure is 15% of a most extreme case. The amount payable for this head of damage is $22,750 ($33,750 less the deductible).

51   The claim for out-of-pocket expenses cannot be dealt with at this stage. There is a lack of material before the court on which any calculation can be made. The court is to be provided with further material in due course. However, in view of the findings that have been made, the plaintiff may only be entitled to a modest sum.

52   In view of the findings that have been made and evidentiary deficiencies, the claim for domestic care fails. Likewise, the claim for costs of equipment and services also fails (it is conceded that the evidence does not justify an allowance for certain of the items of equipment).

53   In the light of what is presently before the court and what was said during submissions, the court can presently proceed no further with the disposition of this case. If necessary, it can be listed for further hearing to dispose of any outstanding issues.
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Last Modified: 02/12/2001