Zoe Johnson v Annah Mireku
[2012] ACTSC 129
•3 August 2012
Zoe Johnson v Annah Mireku
[2012] ACTSC 129 (3 August 2012)
PERSONAL INJURY – motor vehicle - pedestrian accident – credit – apparent minor injury causing long term symptoms – assessment of substantially differing medical opinions
No. SC 275 of 2010
Judge: Sidis AJ
Supreme Court of the ACT
Date: 3 August 2012
IN THE SUPREME COURT OF THE )
) No. SC 275 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:Zoe Johnson
Plaintiff
AND:Annah Mireku
Defendant
ORDER
Judge: Sidis AJ
Date: 3 August 2012
Place: Canberra
THE COURT ORDERS:
Verdict and judgment for the plaintiff in the sum of $111, 815.
The defendant is to pay the plaintiff’s costs of the proceedings on an ordinary basis as agreed or assessed. This order is suspended for seven days to allow the parties to list the matter for further argument on the issue of costs.
The exhibits are returned.
My reasons are published.
Zoe Virtue (nee Johnson), brought a claim arising out of a motor vehicle accident that occurred at Canberra Airport on 26 September 2008. The plaintiff was proceeding over a pedestrian crossing with her, then, 5 year old son. The defendant, the driver of a motor vehicle, failed to give way and struck the plaintiff on the left leg.
Breach of the duty of care was admitted by the defendant on 30 June 2009. The issue at hearing was the nature and degree of injury suffered by the plaintiff and compensation to which she was entitled.
Background
The plaintiff was born in 1979 and went to school in Canberra. She left school in year 11 and worked in various jobs in retail and hospitality. In 1999, she commenced a Science Diploma at the Canberra Institute of Technology. She continued her education with a Science Degree at James Cook University in Townsville in 2001. Following a break in her studies after the birth of her son in 2003, the plaintiff completed her degree in 2006. During her break she started to receive the single parent benefit.
The year before the accident the plaintiff commenced a graduate diploma of education at James Cook University in Queensland. At the time of the accident the plaintiff had returned to Canberra with her son, taking a break in her studies following the end of a relationship.
The plaintiff gave evidence that she was engaged in sporting activities at high school, including netball and tennis, and played these sports socially after leaving high school.
The Accident
The plaintiff was at Canberra Airport at around 8:40am on 26 September 2006 to pick up her sister who was due to fly in on that day.
She walked from the car park to the airport terminal along a pedestrian crossing. She had nearly completed crossing when the driver’s side of the defendant’s vehicle struck her left leg in the region of the knee. She said:
“My leg kind of went under the – the bumper and then twisted and it – it kind of popped and that threw me off balance.” (Transcript 10.9)
She was holding her son’s hand at the time and when she lost her balance, she pulled her son to the ground. The car continued forwards slightly after the impact and the plaintiff gave evidence that she feared that it would run over her son. The car finally stopped some few inches from him.It was suggested by the defendant that the vehicle was travelling at 5km/h at the point of impact. The plaintiff agreed that the vehicle was not travelling very fast at the point of impact but could not state the exact speed. The police report of the incident reported the defendant as estimating her speed at less than 10km/h.
I noted the distance between the point of impact and the point at which the defendant’s vehicle was brought to a halt. This led me to conclude that the defendant was travelling at a speed of less than 10km/h.
The Injury
10.The plaintiff said that her leg was immediately sore, as though she had been punched very hard. She said she was limping. She said she did not feel she had the capacity to drive. She had her sister drive her home.
11.The police report of 26 September 2008 recorded that the plaintiff was initially in pain and was limping slightly. The police saw a red mark just above the plaintiff’s left knee. The report further mentioned that later the plaintiff appeared to be walking normally.
12.Later that morning the plaintiff consulted a local general practitioner at Tuggeranong Square Medical Centre, Dr. Verghese, who reported there was no swelling or obvious bruising or other abnormality apart from warm skin where the car struck the plaintiff. Dr Verghese diagnosed soft tissue damage and prescribed ice, analgesia and Nurofen.
13.During the night following the accident the plaintiff experienced continued pain and went to see the doctor again the next morning. As it was Saturday, the plaintiff went to Phillip Medical Centre and saw a Dr. Ooi who recorded that there was no bruising but that there was tenderness over the left collateral ligament. Dr. Ooi further recorded that the plaintiff was ambulant without limping but had pain on walking. The plaintiff was referred for an x-ray and ultrasound as well as physiotherapy and counselling.
14.The radiologist, who took the x-ray on 27 September 2008, reported that there were no fractures or swelling through joint effusion or lipohaemarthosis.
15.The ultrasound was taken some time later on 8 October 2008. The ultrasound showed thickening and bruising of the subcutaneous soft tissues. No abnormality appeared on the ultrasound in the ligaments or the menisci.
16.On 29 September 2008, the plaintiff received physiotherapy and was given some exercises to perform. She mentioned that the treatment gave her some relief. After the second visit she did not return. She said she did not return because she understood that she was to return if anything significant changed. Nothing of significance occurred.
17.The plaintiff consulted Dr. Rea on 27 October 2008. Dr. Rea reported that the plaintiff told him she was getting better. On the same day she told Micheline Telfer, her physiotherapist, she was “much better: almost 100%”, although she was still not confident to play netball or tennis. Dr. Griffith in his report on 13 November 2008 also reported the plaintiff as saying she had experienced improvement in the last four weeks.
18.The plaintiff underwent counselling in the months after the accident to deal with the anxiety she developed from witnessing her son in a position of peril.
19.Philip Medical Centre records on the 12 February 2009 indicated that the plaintiff had completed counselling and was feeling better.
20.I was satisfied that this counselling substantially resolved the anxiety condition from which the plaintiff suffered as a result of the accident. The plaintiff claimed that she continued to suffer ongoing pain and discomfort in her left knee.
21.She said she experienced two types of pain. One was a constant tingling or deep pain in her knee. This pain was worse in cold weather or when it was about to rain. The second pain was a burning pain that she received after activities such as carrying weights, going up and down stairs, running and extended walks.
22.The plaintiff complained of a constant ache in her knee but her principal complaint was that the knee was unstable and could cause her to fall. The plaintiff mentioned four occasions since the accident when her knee had caused her to lose her balance and fall.
Credit
23.The defendant alleged that the plaintiff overstated the effects of the accident and pointed to a number of aspects of the evidence that appeared to be inconsistent with her claim. The plaintiff insisted that her knee became swollen after the accident and that the pain she suffered caused her to limp. There was little objective support for these claims. The police report noted that after initially limping, the plaintiff appeared to walk normally. The general practitioners that the plaintiff initially consulted reported that the knee was not swollen.
24.The plaintiff disputed the depth of their examinations and said that the reason that she transferred to Dr. Russell as her general practitioner was the dissatisfaction that she felt with the short comings in the treatment she received from her previous general practitioners.
25.I did not consider it unusual that swelling was not disclosed on radiological examination. Further, I noted that the medico legal experts, Dr. Griffith and Mr Jackson made no suggestion that the plaintiff invented or overstated her symptoms. It was clear however that any swelling that did occur after the accident had resolved by the time of plaintiff’s initial consultation with Dr. Griffith on 13 November 2008.
26.The defendant raised with the plaintiff the record that was made by Ms Telfer, physiotherapist, on 29 September 2008 that the plaintiff suffered knee problems a few times at high school when her knee “popped out”. These problems were recorded as having been less severe than those suffered after the accident.
27.The plaintiff said she recalled only one occasion when she had knee symptoms at high school. This occurred when she played netball. She did not recall which knee was affected. The plaintiff said that she continued with all her activities after the incident, including walking and tennis, without further incident or discomfort.
28.The defendant provided no other evidence to support its contention that the condition of the plaintiff’s knee was unrelated to an accident in 2008.
29.The plaintiff first consulted her solicitor on the afternoon of the accident. She said she did so at the urging of a police officer who dealt with the defendant immediately after the accident. She said the police officer recommended that she consult a solicitor because the defendant did not appear to take the matter seriously. I considered that there was nothing sinister in the plaintiff’s conduct in following this advice.
30.The plaintiff agreed that she responded negatively to the question of whether she suffered any joint injuries when completing the documentation necessary to secure her current employment. She said she did this because she was concerned that disclosure would prejudice her prospects of employment. She conceded that this failure of disclosure was wrong.
31.I considered this to be a somewhat hollow criticism on the part of the defendant in the light of the fact that the plaintiff secured employment and continued to work full-time to the benefit of the defendant in minimising her claim for economic loss.
32.Further it appeared from the record that the plaintiff has followed medical instructions directed at overcoming her symptoms. She undertook the exercises recommended by Dr. Griffith and she lost weight on medical advice.
33.In summary, I was not persuaded that the plaintiff’s credit was affected by the matters raised by the defendant. She presented as a witness doing her best to be open and honest with the court.
Medical Evidence
34.Aside from the reports of Mr Jackson relied upon by the defendant, the medical evidence generally supported the plaintiff’s claims of ongoing pain and discomfort in her left knee.
35.After thorough examination in November 2008 Dr. Griffith diagnosed:
·Nervous shock - resolved
·Severe abduction sprain of the medial collateral ligament of the left knee, remaining symptomatic and evident clinically.
·Post traumatic effusion of the left knee ? acute haemarthrosis – resolved.
·Persistent left knee arthralgia – ongoing.
36.His prognosis was that there would be gradual healing and consolidation over a period of 12 months. He said it was essential that the plaintiff protect her left knee during this period and strengthen her quadriceps. He considered that ultimately she would have a good result.
37.As a result of her ongoing symptoms, the plaintiff was referred to Dr. Gillespie, orthopaedic surgeon, in November 2010. He arranged for the MRI examination that he said demonstrated nothing unusual. He reported in March 2011 that the plaintiff continued with distressing symptoms and instability for which he found a definitive diagnosis remained elusive. He suggested an arthroscopy might be warranted at some stage in the future.
38.Mr Jackson examined the plaintiff on the first occasion in August 2011. He appeared to be influenced by early medical reports of minimal objective findings and the physiotherapist Ms Telfer’s record of the prior history of knee problems at high school. He diagnosed a very minor superficial soft tissue injury to the plaintiff’s left knee that would not result in instability of the type described by the plaintiff. He referred to the records that to him indicated a very long history of past knee problems and a significant history of knee instability and “popping”. He concluded that her current symptoms were unrelated to the motor vehicle accident. In reaching this conclusion Mr Jackson appeared to overlook his note that the plaintiff prior to the accident worked as a waitress and in a book store, activities that I would not expect her to be able to undertake with the significant history that he suggested pre-existed the accident.
39.The plaintiff was re-examined by Dr. Griffith in March 2012. She reported to him her frustration at her ongoing symptoms. After testing, his findings and diagnosis remained the same as on his initial examination. He said her symptoms would continue unless the causal medial collateral ligament injury to her left knee was dealt with therapeutically. He also said that there was a real possibility that she had suffered a meniscle lesion.
40.Dr. Griffith recommended that the plaintiff obtain a second opinion from an orthopaedic surgeon. He said that, notwithstanding apparently normal radiology, the clinical signs were unmistakable, typical and entirely consistent with the mechanism of injury. He also said that arthroscopy and appropriate treatment provided prospects of resolution of the plaintiff’s symptoms.
41.Mr Jackson interviewed the plaintiff again in March 2012. He also maintained his previous opinion. He said the plaintiff’s claimed level of disability was greater than he expected and that it was inconsistent with a minor accident.
42.The plaintiff and her husband both claimed that, on this occasion, examination by Mr Jackson of the plaintiff’s knee was cursory and that he undertook no formal testing of the knee joint, notwithstanding his subsequent report of 9 May 2012 in which he stated that he undertook testing on both occasions when he interviewed the plaintiff.
43.Shortly prior to the hearing the plaintiff was referred to Dr. Burns, orthopaedic surgeon, for a second opinion. She consulted him on 7 July 2012.
44.Dr. Burns reported objective clinical signs of abnormality in the musculature of the plaintiff’s left leg that was affecting the functioning of her left knee. He recommended that she have physiotherapy to build up her muscle strength. He expected improvement over a period of three to six months with prospects that this treatment would avoid the requirement for arthroscopic release. The plaintiff has commenced this treatment and stated that the results to date have been positive. She was optimistic that, with the appropriate treatment that she was now receiving, her knee problems would resolve. Her physiotherapist endorsed Dr Burns’ prognosis for recovery.
ASSESSMENT
General Damages45.I did not find Mr Jackson’s reports to be helpful. He appeared to form an adverse opinion of the plaintiff’s credit with very little basis for doing so. This was outside his role as an expert medical practitioner. Further, in my view, he attributed too much weight to the prior history of knee problems at high school when there was no evidence of any ongoing pain or disability or disruption to the plaintiff’s capacity to lead a normal life.
46.Ultimately, Dr. Griffith’s opinions and his findings, although contradicted by Mr Jackson, were confirmed by a treating specialist, Dr. Burns.
47.I therefore preferred Dr. Griffith’s opinions to those of Mr Jackson and I accepted that the plaintiff continued to have ongoing symptoms in her left knee as a result of the injury to that knee suffered in the motor vehicle accident.
48.Those symptoms included ongoing constant pain of varying degrees and instability. There were prospects, following a proper diagnosis and appropriate treatment, that her condition would improve if not entirely resolve.
49.I assessed the plaintiff’s general damages at $70,000 allocating $45,000 to the past and $25,000 to the future in anticipation of improvement.
50.I allowed interest at 2% on past general damages in the sum of $3,600.
Loss of income earning capacity
51.The plaintiff claimed a lump sum for past income loss of the basis that at the time of the accident she planned to move to Melbourne and continue to work part-time in a book store while caring for her son. She said the injury to her knee left her incapable of the tasks of standing, bending and lifting that were inherent in book store work.
52.She therefore remained in Canberra living at her mother’s home and studying full-time. She completed her tertiary education and secured employment as a high school teacher in January 2010.
53.The plaintiff conceded that during the period of her studies, coupled with her obligations to care for her son, she had little opportunity for any form of employment. Since commencing her career in teaching, she has taken only one to two days of sick leave that were related to her knee injury.
54.I considered therefore that the evidence did not support her claim of a buffer in the sum of $25,000 against loss of past and future income. Aside from a slight prospect of a requirement of arthroscopy if the current treatment was not entirely successful, it appeared that the plaintiff’s future as a high school teacher was secure.
55.I allowed the sum of $15,000 under this head of damage to compensate the plaintiff for the period between the accident and the time when she commenced her studies and against the prospect that she will need to take time off if an arthroscopy is required.
Domestic Care
56.The plaintiff’s claim for past care covered three periods. In the initial period after the accident she claimed that she received assistance from her mother and sisters while living in her mother’s home. Her mother then became terminally ill with cancer and during this period the plaintiff agreed that she and her sisters in fact provided care to her mother.
57.After that, the plaintiff moved from her mother’s home initially to public housing where she was assisted by her sisters and Mr Virtue, whom she subsequently married. Finally, In September 2009 she moved into the apartment that she shared with Mr Virtue, her son and her husband’s two children who stayed with them at regular intervals.
58.She claimed that the injury to her knee presented a continued need for assistance. Her claim was supported by the evidence of her husband of the manner in which they shared the work of meeting the domestic needs of their family.
59.The plaintiff’s claim was somewhat difficult to assess in the light of the initial reports of Dr. Griffith that the plaintiff managed her domestic obligations.
60.However, having accepted that the plaintiff was genuine in her complaints of ongoing left knee symptoms, I considered that it was probable that she required and in fact received assistance from her family and her partner with heavier aspects of her domestic obligations.
61.I therefore allowed 1.5 hours per week for past care in the sum of $7,800 and 1.5 hours per week for the future for 2 years in the sum of $3,900.
Out of pocket expenses
62.I accepted the defendant’s contention that it was unreasonable to require her to meet the full costs of the gym membership of which the plaintiff failed to take significant advantage. I therefore reduced the claim for past out of pocket by $1,000 and allowed $1,515.
63.For the future I considered the claim for $10,000 for six months of intensive physiotherapy and the potential for arthroscopic treatment to be reasonable and it was allowed.
Summary
64.The plaintiff’s claim was assessed as follows:
General Damages $70, 000.00 Interest $3, 600.00 Loss of Income Earning Capacity $15, 000.00 Past Care $7, 800.00 Future Care $3, 900.00 Past Out of Pocket expenses $1, 515.00 Future Out of Pocket Expenses $10, 000.00 $ 111, 815.00
ORDERS
65.Verdict and judgment for the plaintiff in the sum of $111, 815.
66.The defendant is to pay the plaintiff’s costs of the proceedings on an ordinary basis as agreed or assessed. This order is suspended for seven days to allow the parties to list the matter for further argument on the issue of costs.
67.The exhibits are returned.
68.My reasons are published.
I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Sidis.
Associate: James Middleton
Date: 3 August 2012
Counsel for the Applicant: Mr A. Muller
Solicitor for the Applicant: Maliganis Edwards Johnson
Counsel for the Respondent: Mr D. Wilson
Solicitor for the Respondent: Moray & Agnew Lawyers
Date of hearing: 24 – 25 July 2012
Date of judgment: 3 August 2012
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