| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : YORK -v- MCNEILL [2004] WADC 219 CORAM : CHANEY DCJ HEARD : 15 OCTOBER 2004 DELIVERED : 10 NOVEMBER 2004 FILE NO/S : CIV 499 of 2003 BETWEEN : JENNIFER DAWN YORK Plaintiff
AND
JULIANNE MCNEILL
Defendant
Catchwords: Damages - Soft tissue injury to cervical spine - Plaintiff 73 years old - Turns on own facts
Legislation: Motor Vehicle (Third Party Insurance) Act 1943 s 3C
Result: Damages awarded at $6,870.60
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Representation:
Counsel:
Plaintiff : Mr K S Pratt
Defendant : Mr P R Momber
Solicitors:
Plaintiff : Trewin Norman & Co
Defendant : Peter Momber
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
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1 CHANEY DCJ: The plaintiff is 73 years old. On 21 March 2002 she was driving her white Ford Laser hatch sedan. She stopped at the intersection of Scarborough Beach Road and Odin Road, intending to make a right turn. A four wheel drive vehicle, driven by the defendant, then collided with the rear of Mrs York's vehicle. The impact forced her back into her seat and caused her head to strike the pillar between the driver's and passenger's windows. Mrs York's car sustained damage to the back bumper, the rear lights and the rear hatch. A quotation for repairs in the sum of $1,100 was obtained, but the car was ultimately fixed by Mrs York's insurer, and she is not sure what the final damage bill totalled.
2 Mrs York was very shaken by the accident, she felt nauseas, she felt unsteady, she had what she described as a violent headache, and experienced pain in her neck. Since then, she has experienced ongoing symptoms resulting from the accident. The defendant has admitted liability for negligence, and the issue in these proceedings is the amount by which Mrs York should be compensated for her injuries.
The plaintiff's background 3 As mentioned, Mrs York is now 73 years old, and was 71 at the time of the accident. She lives alone in a duplex home in which she has lived for the past six years or so. Her husband passed away in December 2000. She comes from a large family who have generally been blessed with relatively long lives. Prior to the accident, Mrs York was in fairly good health, although she had some problems with a troublesome right knee, about which more will be said later in these reasons. She had suffered some neck and spinal injuries about 26 years ago, and those injuries led to a laminectomy at the hands of the late Sir George Bedbrook. That operation was successful, and the symptoms suffered from that injury resolved themselves relatively quickly thereafter. 4 Mrs York said, and I accept, that before March 2002, she had no problems of any significance in her right shoulder or in her neck. She did experience some headaches in the front part of her head, but they were different from the headaches that she now experiences. 5 In general, Mrs York enjoyed good health prior to the accident.
Symptoms immediately after the accident 6 As mentioned above, following the impact, Mrs York felt shaken, nauseas, experienced pain in her neck and a headache which she said
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started at the back of her shoulders and extended upwards and to the right hand side of her head. 7 The plaintiff was a little vague as to precisely what occurred after the accident. She agreed in cross-examination that immediately after the accident, she and the driver of the other car drove their vehicles to a nearby car park. They exchanged names and then Mrs York drove to her home, with the driver of the other vehicle following to make sure that she reached home safely. The defendant, and apparently her passenger, showed commendable concern and care towards Mrs York. 8 On arriving home, the plaintiff laid down to rest. She called her daughter who immediately came to visit her, and then took her to Dr Beckhurst, a general practitioner. 9 Dr Beckhurst confirmed in his report of 15 January 2003 that on presentation to him on 21 March 2002, Mrs York complained of pain in the neck, mid back and lower back, and said that she was emotionally shaken by the accident, and was tender over the dorsal spine and interspinous ligaments of the lower neck to upper back region. She had tightness in the upper trapezius muscle. He assessed that she had suffered muscular and ligamental strains of the back and neck muscles, and recommended local heat to the neck and back in conjunction with analgesia. 10 Dr Beckhurst reviewed Mrs York on 26 March and 5 April 2002 over which time he said that her lower back had improved, but her neck was still sore. Dr Beckhurst expressed concern that "this type of injury typically takes months to years to resolve, and is usually associated with secondary problems such as headaches and depression." 11 Dr Beckhurst had seen Mrs York on some seven occasions prior to the accident. Those consultations concerned medical problems unrelated to her neck or back, save for some mention of pain in the base of the neck on two occasions which appear to have been related to stress symptoms following the death of her husband.
Ongoing symptoms and treatment 12 Dr Ronald Naylor is a general practitioner who has treated Mrs York for a very long period, he thinks probably more than 20 years. His available notes go back about 10 years. He has continued to treat the plaintiff since the accident both in relation to her neck pain, and in relation to problems with her right knee. His first consultation following
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the motor vehicle accident was on 17 April 2002, although it concerned problems with the knee. In relation to the injuries suffered in the motor vehicle accident, Dr Naylor diagnosed a moderate to severe soft tissue injury of cervical and proximal thoracic spine, with quite severe strain of her trapezii muscles. He said movement of her neck was severely restricted, and she was referred to physiotherapy and also to Dr Watson for a neurosurgical opinion. In evidence, Dr Naylor said that Mrs York's symptoms have reached a plateau, although they are "certainly better than they were initially". 13 Mr Peter Watson, a neurosurgeon, saw Mrs York on 29 August 2002. He also diagnosed soft tissue and ligamentous injuries of the cervical spine. He recommended conservative treatment, and in a report dated 29 August 2002 he predicted a slow but gradual improvement with an expectation that it might take one to two years before the symptoms adequately settle. He expected no long term sequelae from the accident. 14 Mr Watson reviewed Mrs York in July 2004. He found her capable of 75 per cent normal range of movement of the cervical spine with tone, power, sensation and reflexes of the upper limbs all intact. He expressed the opinion that there had been some slight improvement in the symptoms since he first saw her in August 2002, and that she would gradually continue to improve, but would take slightly longer than usual to settle. He anticipated ongoing improvement for a further two to three years. He recommended treatment by way of exercise and strengthening with a physiotherapy review each month to guide her in her exercises. He said that she should be careful how she undertakes household chores, and she is not capable of doing any gardening. 15 Mrs York was also referred to Dr Ken Fitch, a sports physician. She attended him on 23 March 2004. He arranged a CT scan, and again reviewed the plaintiff on 29 March 2004. He concluded that the cause of Mrs York's injuries and symptoms was a "whiplash-associated disorder superimposed on pre-existing but asymptomatic cervical spondylosis" and said that minor residual lumbar pain results from the same mechanism. He expressed the opinion that Mrs York's condition will not improve and will remain stable. He expected that over time, gradual deterioration of her cervical spine can be expected. As with the other medical practitioners, Dr Fitch's recommendation for treatment was conservative management with analgesics and massage, with no indication for surgery.
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16 The histories given to the various medical practitioners over the period since the accident are consistent with the symptoms described by Mrs York in her evidence. I had no reason to doubt that Mrs York gave her evidence in a forthright and honest manner, and the medical reports bear that out. I therefore accept her evidence that her symptoms have persisted, although with some improvement, since the accident. She said, and I accept, that the extent of her discomfort and pain varies depending on her activities. I accept that she has suffered from, and continues to suffer from, general tightness of her neck, across her shoulders, and persistent headaches to the back of her head and extending down to the upper neck. I accept that she experiences restrictions in activities such as gardening and housework, although her evidence is that she continues to undertake her household chores, but they take a good deal more time than they previously did.
17 Mrs York said, and I accept, that since physiotherapy ceased in September 2002 because funding was withdrawn from the defendant's insurer, the tightness in her neck has worsened. She continues to drive a car, but finds that driving for anything more than half an hour causes more severe headaches. That has affected the frequency with which she is able to visit her daughter in Koondoola, and caused her to no longer drive to her other daughter's home in Mahogany Creek, which takes some 45 minutes, and which she simply is not prepared to do because of the problems that it causes with her neck. 18 I accept that she has difficulty with her sleep which she deals with by applying heat to the back of her neck so as to reduce the level of her discomfort. She regularly takes analgesics, which she said eased the pain for "a couple of hours", but never completely eradicates the pain. 19 It is apparent that the injuries suffered by Mrs York in the accident have not only caused her a significant degree of pain and discomfort, but have also had an effect on her enjoyment of life generally, and her capacity to enjoy her independence to the degree that she did prior to the accident.
The total knee replacement 20 For some time prior to the accident, Mrs York had experienced problems with her right knee. She had consulted Dr Naylor about the knee in December 2001 and February 2002, and had discussed arthroscopy with Dr Naylor on 6 March 2002. She at first complained of pain in her right knee as early as September 1997, and had also consulted Dr Naylor in relation to it in January and February 2001. Mrs York
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denied that the knee had affected her sleep. She had an arthroscopy not long after the motor vehicle accident, which involved a general anaesthetic. Eventually, she underwent a total knee replacement, but it was not entirely successful. In July this year, she had the patella resurfaced in order to remedy the ongoing difficulties that she was having with pain and inflammation of the knee following the total knee replacement. 21 There was no suggestion by the plaintiff that the knee problems had any connection with the motor vehicle accident. The defendant contended that Mrs York's complaints as to the degree of her pain, inconvenience and suffering that she had described should be seen in the context of the knee problems, unrelated to the accident, which must inevitably interfered with her loss of enjoyment of life. 22 I accept that Mrs York's problems with her knee must inevitably have caused her pain and inconvenience and compounded the detrimental affect on her life that the symptoms resulting from the accident have caused. Having said that however, Mrs York's evidence, and the medical evidence called on her behalf, was discretely directed to those problems which unarguably were caused by the accident. I do not think there can be any suggestion that Mrs York's perception of the pain or restrictions emanating from her neck and shoulders was heightened by pain or discomfort caused by her knee problems. In reviewing the symptoms complained of by Mrs York, and the medical opinions in relation to them, the unrelated knee problems can be put to one side.
The assessment of damages 23 There is in this case no issue in relation to past or future loss of earning capacity. Mrs York is long retired. Medical expenses have been met by the defendant's insurer, and judgment is not sought in relation to past medical expenses. It is advised that special damages have been agreed at $95.60, as had an allowance for past and future travelling expenses in the sum of $250. The plaintiff sought "a modest allowance" for future medical expenses, but the principal head of damages sought relates to non pecuniary loss. 24 Section 3C of the Motor Vehicle (Third Party Insurance) Act 1943 imposes restrictions, which are applicable in this case, on damages for non pecuniary loss. Those damages must be assessed as a proportion, determined according to the severity of the non pecuniary loss, of the maximum amount, which maximum amount may be awarded only in a most extreme case. It falls to me, therefore, to determine the proportion
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which the severity of the pain and suffering, loss of amenities and enjoyment of life and any bodily or mental harm bears to a most extreme case. 25 In this case, the plaintiff suffers relatively constant and at times moderately severe pain in her neck and shoulder. Similarly, she experiences frequent headaches. She is fatigued during the day, and her sleep is interfered with. Her ability to undertake household chores is affected, although not destroyed. Her independence is affected in the sense that she experiences limits on how far she is prepared to drive with the consequence that she sees less of her family. Although Dr Watson thought that some gradual improvement might be expected over the next two to three years, Dr Fitch's opinion is that improvement is unlikely. No doubt there is room for a difference of opinion as to the progression of the plaintiff's condition. I have concluded that the assessment of damages should proceed on the assumption that Mrs York will continue to experience problems at much the same level as she presently experiences for at least two to three years hence. Given her advancing years, that prognosis is a matter of some significance to her enjoyment of life. Having regard to what might be considered "a most extreme case" such as quadriplegia of a young person, and having regard to the aspects of non pecuniary loss which Mrs York has suffered, I have concluded that her damages for non pecuniary loss should be assessed at seven and a half per cent of a most extreme case. The current maximum payable for a most extreme case is $257,000, so that 7.5 per cent is $19,275. From that must be deducted the amount of $13,000, being the current amount B classified under the Act, with the result that the plaintiff is entitled to damages for non pecuniary loss in the sum of $6,275.
Future medical expenses 26 It is likely that the plaintiff will require ongoing visits to her general practitioner, and she will require analgesics for the pain resulting from the injuries caused by the accident. No figures as to an appropriate allowance were suggested to me by either counsel, but even the plaintiff's counsel suggested that the allowance should be "modest". I agree, and I would allow the sum of $250 by way of damages for future medical expenses.
Conclusion 27 It follows that the plaintiff is entitled to judgment in the sum of $6,870.60 comprising non pecuniary loss of $6,275, agreed special damages $95.60, agreed past and future travel allowance of $250, and future medical expenses $250. |