On 21 July 2010, Angela Andromedas was in slow moving, heavy traffic when a car collided with the rear of her vehicle. She claims damages: past and future economic loss, including lost superannuation; past and future domestic care and assistance; and past and future medical costs. No claim is made for non-economic loss as the whole person impairment threshold has not been met. Liability was not in issue.
The primary issue in the proceedings is the extent to which Ms Andromedas suffered injury and ongoing disabilities as a result of the collision. The matter is complicated by injuries and disabilities Ms Andromedas sustained or may have sustained in a work accident about nine months prior to the motor vehicle accident, and, by the circumstance that Ms Andromedas returned to work for about three to four months starting about seven months after the motor vehicle accident.
Oral evidence was given by Ms Andromedas and two female friends, Nancy Haidar and Anne Bradbury.
[2]
MS ANDROMEDAS' TESTIMONY
Ms Andromedas gave evidence that in about September 2009 she was working as a security guard when she assisted other employees to collect boxes of juice and "felt a very sharp pain in my back and neck". Subsequently, she visited a doctor and "he didn't allow me to go back" into employment. She received treatment for the injuries connected with that work accident. She also saw a psychologist because she "felt depressed".
By July 2010, Ms Andromedas gave evidence that she was "recovering" from her neck and back problems and was intending to return to work fulltime. She had been certified in about late May 2010 as being able to recommence employment for 12 hours per week, although she accepted that she was still experiencing neck pain up until the time of the car accident on 21 July 2010.
Ms Andromedas described the accident as occurring when the traffic was "bumper to bumper", not going fast and then "my neck went flying and I felt a very sharp pain in my neck and my back". She went to the police station and gave a statement, although that statement was not in evidence. She did not go to the hospital nor was an ambulance called. The next day she said she vomited and "was very bad".
Ms Andromedas did eventually go back to work, she thought in 2010, for two or three days a week for a period she could not recall. The parties agreed before me that Ms Andromedas returned to work on limited hours, about 12 per week, for about three months in 2011. The medical assessment documents and rehabilitation documents indicate that the approximate period of Ms Andromedas' work in 2011 was from about 7 March 2011 to late June or early July 2011, a period approaching four months.
Subsequently, Ms Andromedas had a gastroscopy in 2012 and a hysterectomy in 2014. She claimed to have put on 12 kilograms of weight since the car accident. She has taken medication for "anxiety and depression" and for pain, although no receipts for her medication were in evidence. Of her current domestic activities, she says:
"I'm not doing anything. I'm making coffee, that's my - that's the extent of what I do. I'm not - I don't want to even attempt anything because I know that it just - I've tried it and I can't do it anymore. I can't. It's like very - I can't, I can't explain injury - what - it's very hard to explain injury."
Until this year Ms Andromedas had lived with her mother and her niece, who is her mother's fulltime carer. Her niece, Ms Andromedas said, "[K]icked me out of the house... We weren't getting on, it was very difficult." Ms Andromedas is currently doing a "Certificate III course" in business.
Ms Andromedas said that her headaches before the car accident were "every three months" but afterwards were "every three weeks". She currently does no domestic tasks as she is staying at Ms Haidar's place where she is, she said, assisted to get her underwear onto her knees. She drives a motor car.
Ms Andromedas' evidence was challenged in cross-examination. She was asked how she was at the end of 2009. She said, "I believe it was, it was bad. I - it was the staying the same, let me think." "[I]t was severe initially; it was excruciating." She said she was getting better in May 2010. However, she accepted the contents of the rehabilitation report in May 2010 as correctly recording her complaints, which included indications by her of difficulty washing dishes, walking up steps and leaning or reaching forward.
A Vocational Assessment Report in late June 2010, three weeks before the motor vehicle accident, recorded that (Exhibit 1, p 136):
"Ms. Andromedas stated that she used to cook and clean but now hardly does anything. The only thing Ms. Andromedas reported that she does is very light work such as making a coffee and her mother does all the rest."
That report also noted that, "Ms. Andromedas is currently unable to return to her pre-injury duties." Ms Andromedas sought to explain this evidence of her poor pre-accident condition, attributing it to fluctuations - "[i]t might have been a bad week" - or to the rehabilitation reporter being "pushy".
Conversely, evidence after the motor vehicle accident indicating that Ms Andromedas' abilities were greater than those attested to by her evidence was explained by the possibility of the effect of the medication she was taking or by her being distracted by her surrounds or activities, such as the "breathtaking" view of Sydney Harbour, or perhaps also because it was a good day. She accepted that in February 2011 she had told Dr Vidyasagar Casikar that she had tried walking in high heels but that it was impossible.
Ms Andromedas accepted that she did return to work some months after the motor vehicle accident but was having days off and her duties were light. She accepted that she had attributed the end of her employment, apparently at about the end of June 2011, as her employer having "lost the contract". But the real reason, she said, was that, "[T]hey didn't have enough hours to give me." Whatever be the precise cause of the end of Ms Andromedas' employment, it was not suggested that it ended because of her condition but rather because of circumstances affecting her employer. In March 2011, Ms Andromedas' circumstances at work were reported in April 2011 as her having "showed much enthusiasm and advised no difficulties in performing her suitable duties" in the Rehab Focus Australia Progress Report of 11 April 2011 (Exhibit 1, p 164).
Ms Andromedas was asked about a video which was taken on two occasions in December 2010, about six months after the motor vehicle accident. The video recorded a trip by her to the Opera House to see Oprah Winfrey and a visit to the markets to go shopping. I should note that no questions concerning the video were asked of the other two witnesses called, Ms Haidar or Ms Bradbury, and the Court was not informed of whether either had seen it.
On both occasions in the video, Ms Andromedas travelled largely alone, although she was met by some friends near Circular Quay on the Oprah Winfrey occasion. On that day she was dressed up and wearing high heels, "The highest heels…I've ever worn," she said, contrary to her complaint to Dr Casikar referred to earlier.
The video records her driving to a suburban train station, wearing high heels and carrying a bag or bags, walking to the train platform, catching a train to Circular Quay, meeting her friends, walking from Circular Quay train station to near the Opera House, and standing and moving slowly for some time in a queue. At least once she removed her shoes for a period. The video indicated that whilst walking she appeared to walk with no apparent discomfort. She was also able to hold her camera in her right hand with her arm high above her shoulder to take photos.
The video of her visit to the markets showed Ms Andromedas walking in high platform shoes with bags, and bending over at a counter where she bent forward, both at the back and at the neck, for an extended period. The video also showed Ms Andromedas walking whilst carrying six bags, three in each hand, along an unsealed surface on the side of a roadway. During that walk, she put down her bags and viewed their contents as she sat on a log barrier for a period of time. She then stood up before bending over, not apparently bending her knees but bending her back, to pick up her bags from the ground. She then continued, presumably walking to her car.
This account of what the video showed was not disputed in substance by Ms Andromedas, although she indicated that she had taken her shoes off more than once at the Opera House. She said she may have been assisted in managing her spinal pain by the medication she was taking.
Ms Andromedas' evidence was not convincing. I accept that there were and there still are times when she experiences back and neck pain. However, the real issue is the extent of the ongoing issues and most importantly, whether those issues are properly attributable to the motor vehicle accident. Her evidence as to her condition, abilities and disabilities in the periods both before and after the accident was inconsistent, in my view, with what contemporaneous reports showed and was inconsistent with what the video indicated. Her evidence understated her disabilities prior to the motor vehicle accident and exaggerated her disabilities in the 12 months afterwards.
Senior Counsel for Ms Andromedas sought to explain the difference between her condition as disclosed in her oral evidence and that disclosed in the reports by referring to her anxiety and other psychological issues, and submitted that her evidence should not be regarded as deliberately false. I see some force in this submission. However, it leaves her evidence as unreliable and having little value in assessing the cause of her disabilities.
In this regard, in closing reply submissions the plaintiff's Senior Counsel referred to the plaintiff's anxiety and psychological condition as a potential source of damages. The relevant reports seem to indicate that Ms Andromedas' mental condition was no worse than prior to the motor vehicle accident when Ms Andromedas commenced seeing a psychologist. But in any event, I understood Senior Counsel to rely upon those reports principally as an explanation for the conflict between the plaintiff's oral evidence and other reports, rather than as a foundation for her inability to work.
[3]
OTHER WITNESSES
The evidence of Ms Bradbury was of limited assistance. She first met Ms Andromedas some 18 months after the motor vehicle accident. About every six weeks, Ms Andromedas would visit Ms Bradbury and Ms Bradbury would wash Ms Andromedas' hair, provide some hair removal services and sometimes massage her feet and apply nail polish to her nails. Whether these services were supplied gratuitously or for a fee was not disclosed on the evidence, although it does not appear that any claim was made for an expense associated with them. Usually Ms Andromedas stayed the night with Ms Bradbury and then returned home but occasionally Ms Andromedas became sick and stayed longer. Ms Bradbury gave evidence that Ms Andromedas often complained of bad headaches and that she is "much more depressed than when I first met her" (although, when Ms Bradbury first met Ms Andromedas, Ms Andromedas was "in a very distressed state - she was crying" and Ms Bradbury took her to her house to lie down in a dark room for the day).
As Ms Bradbury had no knowledge of Ms Andromedas' condition prior to the motor vehicle accident or in the 18 months thereafter, her evidence could not assist on the question of causation or as to the immediate aftermath of the motor vehicle accident or Ms Andromedas' condition when she returned to work. Ms Bradbury's evidence was also of limited assistance as to Ms Andromedas' daily need for care since it was based on the relatively infrequent contact of visits every six weeks. Ms Bradbury was only briefly cross-examined, although in submissions the insurer challenged the accuracy of her testimony. I accept her evidence as far as it went.
Ms Haidar gave evidence that she was friends with Ms Andromedas from between 2006 and 2009, that she saw her "possibly once a month" from 2010 to early 2016 and that Ms Andromedas is currently living with her and her family. Again, there was no evidence or contrary evidence regarding any commercial arrangement in respect of the accommodation or services provided by Ms Haidar.
Ms Haidar gave evidence that she was aware that Ms Andromedas had had an injury at work from which she was recovering in 2010. She said that Ms Andromedas had visited her in June 2010 and told her, "I'm really happy that my doctor is giving me clearance to go back to work." She said Ms Andromedas was told by her doctor that she could start off with "12 hours and building up". Ms Haidar was also told about the motor vehicle accident in July 2010 where Ms Andromedas "endured a lot more pain to her neck, upper and lower back". She said Ms Andromedas was "like a different person" before the car accident because of her physical injuries, and that "she's depressed, she complains a lot", she is tearful, sad and suffers from back pain. Ms Haidar said that she helps Ms Andromedas "with her undergarment" because she is "unable to bend like properly so I have to help her", "I just help her a little bit". That was said to occur "if she needs my help" but also "every time she has a shower".
Ms Haidar was hopeful that Ms Andromedas would be able to go back to living at her mother's home with her niece.
Ms Haidar's evidence was challenged. She was unaware that Ms Andromedas had, after the motor vehicle accident, been certified to be able to return to work for 12 hours a week. Ms Haidar denied that Ms Andromedas had returned to work after the motor vehicle accident. Ms Haidar was also less than certain about the year of the conversation concerning Ms Andromedas' happiness at being able to return to work.
I am not persuaded of the accuracy of Ms Haidar's recollection of the terms of Ms Andromedas' conversation or the precise timing. She was not asked to recall them until recently. Her denial, or lack of awareness, of Ms Andromedas' return to work, indicates that there were substantial periods of time shortly after the car accident when Ms Haidar and Ms Andromedas did not visit or converse or that Ms Haidar had forgotten matters or perhaps that Ms Andromedas had not relayed that information. None of these possibilities enhance the value of Ms Haidar's testimony about her recollection of conversations six years ago.
I accept that Ms Haidar has rendered assistance to Ms Andromedas on occasions, although I do not accept that what assistance she may be rendering now in 2016 fairly reflects what was Ms Andromedas' condition in late 2010 after the motor vehicle accident or that it indicates the consequences of that accident. Nor do I accept that Ms Haidar's assistance to Ms Andromedas is a necessity consequent upon Ms Andromedas' physical condition.
[4]
THE DOCUMENTARY EVIDENCE
Ms Andromedas underwent CT and MRI scans of her lumbosacral spine in late 2009, after the work injury but prior to the motor vehicle accident. Those scans (Exhibit A, p 4) indicated a mild or "minor broad-based disc bulge" at the L3/L4 level abutting the anterior thecal sac "without significant canal stenosis" or "minor narrowing" or, as stated in the MRI, "minor narrowing of the exit foramina". The CT scans (Exhibit A, p 4) recorded that at the L4/L5 level, a "moderate broad-based disc bulge…indenting the anterior part of the thecal sac…[was] causing mild narrowing". The MRI of the same period stated (Exhibit 1, p 104):
"The disc abuts the left L5 nerve root within the lateral recess without significant distortion to suggest impingement. However this could potentially result in nerve root irritation."
A MRI of the cervical spine on 8 January 2010 reported (Exhibit 1, p 110):
"Signal loss in the C5-6 disc would indicate the presence of degenerative change. At this level, a focal posterior disc protrusion has occurred, extending to cause an early focal flattening of the ventral margin of the cervical cord…Uncovertebral arthrosis has developed, resulting in bilateral foraminal narrowing, more prominent on the right side."
Dr Peter Bentivoglio, Chairman of Neurosurgery at St Vincent's Hospital, reported in November 2009 in referring to the lateral disc bulge at the L4-5 that it, "maybe irritating the L5 nerve root" (Exhibit 1, p 106). On 17 February 2010, he stated that the cervical spine showed "some degenerative disc disease, which is of long standing and I do not believe is related to the injury that she sustained on the 17th September 2009", the work incident (Exhibit 1, p 111).
Dr Casikar's conclusion on 24 February 2010 was similar. However, Dr Clive Sun, retained by the plaintiff, attributed the cervical and lumbar spine issues to the work incident.
These scans were taken and opinions were given prior to the motor vehicle accident.
In March 2011, about nine months after the motor vehicle accident, a MRI recorded (Exhibit A, p 7):
"The C5/6 disc is narrowed and degenerate with a circumferential disc bulge associated with endplate osteophytes. This is flattening the anterior aspect of the thecal sac reducing the AP diameter mid canal to 8mm and is causing mild canal stenosis. There is mild narrowing of the left foramen at this level due to degenerative changes in the uncovertebral joint."
In January 2012, Dr Sun regarded the lumbar and cervical spine issues as being present prior to the motor vehicle accident but that the motor vehicle accident had aggravated Ms Andromedas' symptoms. That opinion was not disputed by the insurer at least in respect of the six months or so after the motor vehicle accident. Dr Sun found no radiculopathy and no increase to Ms Andromedas' whole person impairment as a result of her cervical spine aggravation.
Ms Andromedas principally relied on the 2011 reports of Dr Paul Teychenne. Dr Teychenne referred to the possibility of mild right C7 radiculopathy. In March 2012, he "found evidence of a mild right C7 radiculopathy", that the patient's description of symptoms was (Exhibit A, p 50):
"consistent with post traumatic migraine like headaches occurring as a result of an injury to the cervical spine from the motor vehicle accident",
and referred to possible increased lumbar spine disc prolapses. He asserted that (Exhibit A, p 52):
"She does however require a further MRI scan of the cervical and lumbar spine to exclude an increase in size of the cervical disc prolapse at C5/6 and an increase in the size of the lumbar disc prolapse at L5/S1".
Apparently no further scans were taken as none were in evidence.
Dr Teychenne's report was challenged on the basis that the history recorded does not include any details of the disabilities experienced by Ms Andromedas prior to the motor vehicle accident, and also on the basis that no other report found radiculopathy or attributed a new cervical or lumbar spine injury to the motor vehicle accident.
Dr Margaret Gibson, retained by the defendant, in 2012 concluded (Exhibit 1, p11):
"It is possible there was minor short term symptomatic aggravation of her neck complaints [by the accident], but the underlying issue is of age related degenerative spinal changes."
Dr Gibson found no radiculopathy.
Dr A J Sanki in 2012 found a minor impairment of the cervical spine but without radiculopathy.
I also note that the report of Dr Leonard Lee in March 2011 refers to there being no neck pain prior to the motor vehicle accident. That is inconsistent with the evidence before me. Dr Lee noted that in 2013 Ms Andromedas' pains were significantly greater than in 2011.
Although there is some variation between the reports of the doctors, there is little material to indicate that Ms Andromedas' condition was substantially worse as a result of the motor vehicle accident. The opinion of Dr Teychenne that may support such a conclusion is the subject of caveats about the need for further scans and is expressed in a form indicating some uncertainty.
The scans both before and after the accident identify the same cervical and lumbar problem; Dr Sun, who was retained by Ms Andromedas to prepare reports of Ms Andromedas both before and after the motor vehicle accident, regarded her lumbar and cervical spine changes as being present before the motor vehicle accident and that no radiculopathy resulted from the cervical spine changes, contrary to Dr Teychenne.
In assessing Ms Andromedas' condition, I have given some weight to her contemporaneous descriptions of her symptoms and disabilities.
The rehabilitation reports show that in the months prior to the motor vehicle accident, Ms Andromedas seemed to regard her condition as poor, although she had been certified as fit to return to work on limited hours. She described how she "used to cook and clean but now hardly does anything…only…very light work such as making a coffee". She claimed significant pain levels in the region of 7 out of 10 to 8 out of 10 during the rehabilitation assessments in May 2010, with limited standing and sitting tolerance and, as I indicated, some three weeks before the car accident, she was said to be unfit for her pre-injury duties. She did not return to work in the seven weeks between being certified fit to return to work for 12 hours per week, and the occurrence of the motor vehicle accident.
Ms Andromedas returned to work after the motor vehicle accident in early 2011. By then she was certified to be fit to work for the same number of hours as she had been certified prior to the motor vehicle accident, namely 12 hours per week.
[5]
ASSESSMENT OF LOST EARNING CAPACITY
Damages in respect of past and future economic loss require an assessment of the extent to which the diminution in earning capacity is productive of financial loss, see Graham v Baker (1961) 106 CLR 340 at 347.
As the Court of Appeal in Morvatjou v Moradkhani [2013] NSWCA 157 stated at [54]:
"It is incumbent upon the plaintiff to prove the loss for which compensation is claimed (Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 (at 412) per Gibbs CJ and Wilson J) and the quantification in money that should be adopted in the sum awarded: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 per Dixon CJ (at 159). Accordingly, the plaintiff must prove the extent of his or her pre-accident earning capacity, the extent to which that capacity would have been productive of income had the accident not happened, and the extent to which the compensable injuries have diminished his or her ability to exercise the pre-accident earning capacity: Giorginis v Kastrati (1988) 49 SASR 371 (at 374) per von Doussa J (King CJ and Legoe J agreeing)."
Ms Andromedas was unable to work in the nine months prior to the motor vehicle accident. In my view, her condition six months after the car accident, when she was again certified fit to return to work on limited hours, was equivalent to her condition immediately before the car accident.
Ms Andromedas' return to work in early 2011 for a three to four month period was not an insubstantial period of time. The contemporaneous records (April 2011 medical assessment certificate report) indicate that she had no difficulty with performing her duties and showed some enthusiasm.
I accept that the motor vehicle accident effected a temporary aggravation of Ms Andromedas' condition. In that event, it postponed her return to work. She lost the opportunity to return to work in about August 2010 and her return was postponed for some seven months after the accident. She also lost the opportunity to increase her hours of work over this period of time. I do not accept that she should be considered as having lost the opportunity only to work 12 hours a week: increased hours might have been expected over time. Taking into account that she worked 12 hours a week for about three to four months from March 2011, after she was certified as suitable for that level of work in January 2011, and that she was similarly certified in June 2010, I conclude that she has lost the opportunity to work for about seven months.
There is a real prospect that Ms Andromedas' hours could have increased during that period and indeed, by the time she actually worked she may then have been on slightly more hours. I think that the appropriate amount of loss is in the amount of $350 net per week (a little less than half of her net pay) for 30 weeks, which equates to $10,500. To this amount must be added $1,155 for lost superannuation and a Fox v Wood component of approximately $600, amounting to a total past economic loss of $12,255. However, there is no further past economic loss as she had recovered her pre-accident condition by the time she returned to work.
As to future economic loss, I do not accept that the accident has impacted at all on the future earning capacity of the plaintiff as, again, the effect of the accident was spent by the time she returned to work in 2011. I do not propose to award any sum for lost future earning capacity.
[6]
DOMESTIC CARE AND ASSISTANCE
Initially Ms Andromedas made no claim in respect of domestic care and assistance. Her particulars of damage on 18 July 2011 stated (Exhibit 3):
"Past Domestic Care
The Claimant has received gratuitous care and assistance from her mother since the work injury and that has been aggravated by the car accident. The claimant reports that her mother has been doing these duties for her since the workplace injury and accordingly no claim for past gratuitous care can be made."
I do not accept that her need for domestic care changed as a result of the motor vehicle accident so I do not award any provision for past or future care.
[7]
MEDICAL EXPENSES
The parties agreed that Ms Andromedas had expended $6,743.59 in respect of medical expenses for the period from 21 July 2010 to 31 December 2010. It may be that this figure should be discounted by the amount of expenses that would have been incurred in any event, but the insurer does not seek a reduction. Conversely, it might properly include an additional month or so as the plaintiff was not certified as fit to return to work until January 2011. I propose to award the sum agreed to have been expended in the confined period.
As the impact of the motor vehicle accident on the disabilities of Ms Andromedas was spent by her returning to employment in 2011, there is no basis for a further provision for medical expenses in the future.
[8]
CONCLUSION
Accordingly, I assess damages in the sum of $18,998.59 ($12,255 + $6,743.59).
[9]
COSTS
As Ms Andromedas has succeeded in obtaining an award of damages, she may be entitled to an order for costs. On the other hand, an award under the sum of $40,000 does not ordinarily justify a costs order pursuant to r 42.35 of the Uniform Civil Procedure Rules 2005, although the complexity occasioned by the work injury may warrant an order under r 42.35(2). In the circumstances, I propose to decline to make formal orders for two weeks in the matter in case the parties wish to make any submissions concerning the application of r 42.35 or any other matter in respect of costs, or another matter that may have been overlooked in my calculation of the damages sum of $18,998.59.
[10]
ORDERS
I will defer making further orders until 5 December 2016. In the event that no submissions have been received from the parties, I propose then to make an order for judgment in the sum indicated and an order in favour of the plaintiff for costs. But I will not make those orders on 5 December 2016 in the event that either party has made an application in respect of those matters.
Accordingly, order I will defer making final orders until 4pm on 5 December 2016 and, in the event that submissions have been received in respect of costs or otherwise by that date, until those submissions have been considered.
[11]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 05 December 2016