Cooper v McLinden [2011] ACTSC 206

12. The plaintiff was cross-examined about her claim for treatment expenses. She claimed only about $600.00. This included two physiotherapy sessions in February and March 2008, and five chiropractic treatments between September and December 2008. Less than $100.00 was claimed for medication. The plaintiff's evidence was that she had had "a few more sessions" with the chiropractor but had misplaced her receipts. She agreed that she had not had any chiropractic treatment since mid-2009. As to the claim for medication, she said that there had been a period when she had been to different chemists, and did not have receipts so had not included these payments in her claim.

13. As to the bed, she said that her previous bed was several years old. She brought the new bed in the hope that it would provide some relief and a better night's sleep. She had used the pooled financial resources of her partner and herself to buy the bed but she had kept it following their separation.

14. The plaintiff was cross-examined from records produced by her general practitioners since the car accident. She agreed that she had had very little treatment over the years for neck or back pain, and that the majority of her visits had been for unrelated matters. At no time had she had any specialist treatment.

15. The plaintiff was also cross-examined from leave records produced by her employer. These showed a number of days taken off to care for a sick child, one for a common cold and one for a dental procedure. Others were not specific as to the reason for leave. She explained that when she was working at group houses, she would have up to five rostered days off at a time, which enabled her to rest without taking sick leave.

16. Other records produced by the employer showed the plaintiff's hours worked per fortnight over periods before and after the accident. The plaintiff's working hours were reduced in February 2010, about a month before her separation. Counsel for the defendant put to her that she had asked for this because she was about to become a single mother and would need more time to look after her children. She denied this, and said that the reduction in hours was because of her injuries.

17. Senior counsel for the plaintiff said in his opening that the plaintiff's former partner would be called as a witness. In the event he was not called and no explanation was offered as to this.

18. On 23 January 2010 the plaintiff's general practitioner, Dr Tang of the Florey Medical Centre, signed a certificate to the effect that the plaintiff suffered from chronic lower back pain, supporting her application for a reduction in hours of work from 80 hours to 60 hours per fortnight.

19. Dr Tang referred the plaintiff to the radiology department at the Canberra Hospital for an MRI scan of the lumbar spine. This was carried out on 9 April 2010. The reporting radiologist said that early spondylotic changes could be seen throughout the lumbar spine. There were disc bulges at T12-L1, L4-5 and L5-S1. The summary was that the plaintiff was suffering from mild multi-level degenerative disc disease with osterial bulging, but no significant neural impingement.

20. The medical evidence was mostly in report form. For the plaintiff, there were two reports by Dr A W Searle, a very experienced orthopaedic surgeon, known within the legal profession as the author of Orthopaedics for Lawyers (Law Book Co, 2002), a very useful book for lawyers with no formal medical training. Dr Searle provided two reports and gave oral evidence. Dr R J Brooder, neurologist, provided two reports which were not challenged in cross-examination. Dr Brooder has been a medical practitioner for more than thirty years and a specialist neurologist for more than twenty-five years. He holds a number of hospital and university appointments.

21. For the defendant, Dr P D Stevenson, consultant physician, provided two reports, and gave oral evidence. There was also a report from Dr E Revai, consultant psychiatrist, which was admitted without objection.

22. As to the plaintiff's physical injuries, the principal disagreement was between Dr Searle and Dr Stevenson. Dr Searle saw the plaintiff in April 2008 and March 2010. On each occasion he took a history and conducted a physical examination. The opinion in his first report was that the plaintiff had suffered cervical and lumbar ligament strains, and that the car accident may have caused a bulge of the two lower lumbar disks. She had symptoms in the neck and lower back which were persistent and permanent, causing a moderate degree of disability. She was permanently unfit for activities which required a sustained neck flexion posture, repetitive movements of the head and neck, prolonged sitting, prolonged standing, lifting, repeated bending, twisting movements of the trunk, or regular long-distance travel. No particular treatment was recommended other than the taking of analgesics as required and no significant change in the symptoms could be expected.

23. Following his review of the plaintiff in March 2010, Dr Searle confirmed his earlier opinion. It was by then almost three years since the accident and he did not anticipate improvement in her symptoms in the future.

24. Dr Brooder saw the plaintiff for the purpose of reports to her solicitors in April 2008 and November 2009. He also took a detailed history and conducted a physical examination. The history on the first occasion included a complaint of constant and variable aching low back pain, generally more severe on the left side and aggravated by increased physical activity, prolonged sitting or prolonged walking. The symptoms were generally more severe at the end of a working week. There was also a complaint of constant aching pain in the neck, particularly on the left side, extending into the left shoulder. Her symptoms had generally improved with medication and physiotherapy but had failed to resolve. Dr Brooder diagnosed a musculoligamentous strain injury to the lumbo-sacral spine and particularly the ligamentous support of the zygapophyseal joints. As a result of the strain injury there had been secondary muscle spasm involving the lumbar paravertebral muscles on the left side. In addition to this she had probably aggravated early degenerative changes and intervetrabral disc bulging at L4-5 and L5-S1. She had also suffered a musculoligamentous strain injury involving the supporting structures of the left side of the cervical spine and particularly the ligaments supporting the left-sided zygapophyseal joints. This strain injury had been associated with secondary muscle spasm involving the left-sided cervical paravertebral muscles extending to involve the left trapezius muscle. It was possible that there were also underlying early degenerative changes in the cervical spine which had been aggravated by the injury.

25. As a result of the injuries, the plaintiff's ability to undertake heavy physical activity, prolonged or repetitive forward bending and lifting, prolonged sitting or walking, or prolonged posturing of the head and neck in a slightly forward flexed position (as in using a computer) had been reduced.

26. At the time of his first report, Dr Brooder said that it was too soon after the accident to offer a long-term prognosis. There was a reasonable prospect that she might continue to improve. However, she had had persistent symptoms for almost a year and it was possible that these might persist to some degree indefinitely. It was unlikely that the injuries would have any significant impact on her employability.

27. Dr Brooder saw the plaintiff again in November 2009. She was at that time complaining of constant and variable dull aching pain in the mid and low back, extending into the upper buttocks. She also had intermittent, almost daily, aching pain in the cervico-occipital region, more severe on the left. She had also developed intermittent hip pain, particularly on the right side (this seems likely to have been related to the incident on board ship during the plaintiff's Pacific cruise, and is not alleged to have any relationship with the car accident). Dr Brooder noted that the other symptoms had been present for more than two and a half years and had failed to resolve after a lengthy period of conservative treatment. In the circumstances he thought it likely that she would remain subject to persistent symptoms, and some degree of disability, indefinitely. Nevertheless, the injuries had not had a significant adverse effect on her continuing employability, although she should avoid the physical activities he had previously mentioned.

28. For the defendant, Dr Stevenson saw the plaintiff on one occasion, in June 2009. In his first report, he confirmed that his specialty was appropriate for the conduct of the assessment. Unfortunately, I was not provided with anything in the nature of a curriculum vitae for Dr Stevenson and have no information about his qualifications or experience. His reports are on the letterhead of a medico-legal reporting organisation with, it appears, offices, or perhaps consulting rooms, in each of the States and Territories. Dr Stevenson acknowledges "having reviewed the available records" but does not identify all of these. He refers to the findings on a CT scan of the plaintiff's lumbar spine but states that degenerative disc bulges are known not to be traumatic and not significantly related to pain or disability.

29. Dr Stevenson refers to having seen a copy of the statement of claim, and the first reports of Dr Searle and Dr Brooder. He expresses the opinion that whiplash type incidents are likely to precipitate short-lived episodes of pain and discomfort but are self-limiting. He says that by the time he saw the plaintiff, the injuries from the motor accident had resolved. He seems to think that her work as a disability officer may have been the cause of her back pain. He says that the car accident was not a particularly high-velocity collision, but rather one of moderate velocity. Hence an episode of neck and back pain was reasonable but should have resolved within a few days or weeks. He thought that some of the allegations in the statement of claim, for example a requirement for household assistance, were exaggerated. Intermittent and non-specific back pain was a common predicament, likely to occur with or without trauma.

30. He thought that the plaintiff had had excessive manipulation (physiotherapy and chiropractic) and needed no further treatment. Codeine was not a particularly beneficial analgesic, and hence there was no basis for the continued use of Panadeine Forte.

31. Dr Stevenson prepared a second report in April 2010, although he did not see the plaintiff again. He had been asked to make comments about some reports served by the plaintiff's solicitors, including a report by an occupational therapist which was not in evidence before me. He made the point that disc bulges such as those seen on CT scan in the plaintiff's lumbar spine were common in the general population and were not traumatic. They were to be found in 30% to 60% of the ageing population and had no correlation with pain or disability. They reflected genetic predisposition and the ageing process. Degeneration was not accelerated by the minor strains which occurred in a whiplash injury. He adhered to his earlier view that the plaintiff had suffered a minor soft-tissue injury which had long since resolved.

32. Counsel for the defendant also tendered a report by Dr E Revai, psychiatrist, who saw the plaintiff in July 2009. He came to the view that the plaintiff was not suffering from anxiety or a depressive disorder, as had been alleged by her solicitors. A few sessions with a psychologist should have been enough to settle her claimed anxiety when travelling in a motor vehicle.

33. There was no psychiatric or psychological evidence tendered in the plaintiff's case and hence Dr Revai's opinion is unchallenged.

34. Dr Searle and Dr Stevenson were both cross-examined by telephone. Dr Searle's evidence was that most victims of whiplash injury recovered completely within a fairly short time, but it was not uncommon for 10% to 20% to be left with chronic permanent pain. To the extent that Dr Stevenson had expressed the opinion that all soft-tissue injuries to the neck and low back inevitably cleared up in a matter of weeks, he said that this was unfortunately quite wrong. There was an overwhelming mass of evidence in the orthopaedic surgical literature following up cases for many years, with a percentage of patients never getting better.

35. In the case of the plaintiff, there was no serious pathology demonstrated radiologically, and the problem was therefore probably due to ligament strain and injury to the soft tissues. Her neck pain would probably continue without worsening. Her lumbar symptoms would be likely to worsen gradually over the years.

36. He disagreed with Dr Stevenson that the bulging in the lumbar region was degenerative, saying that there was no other evidence of degenerative change in the low back. He adhered to his view that the car accident had been responsible for the pathology in the lumbar discs.

37. Dr Searle agreed that bulges were common in the general population but did not think that the plaintiff had reached the age where this was to be expected. Even then, as many as 70% of the population did not develop such bulges. He said that the proposition that the bulges had no correlation with pain or disability was nonsense. He was aware of a number of the studies which Dr Stevenson had referred to in his reports, and acknowledged that some of them had some basis of fact. He made the point that x-rays do not show pain. Some patients with abnormality on x-ray have no symptoms, whereas others with apparently normal x-rays can be in great pain because of soft-tissue damage which cannot be seen on x-ray.

38. Dr Searle was referred to the MRI report of April 2010, and in particular the opinion that what was seen was mild multi-level degenerative disc disease. He said that the radiologist who had expressed that opinion had been wrong. He said that orthopaedic surgeons saw a lot more of such conditions than radiologists. He had looked at the scans himself. There was no dehydration or desiccation, no changes in the bones on either side of the disk, no osteophytes, and no evidence of arthritis in the facet joints. There was in his opinion no evidence of degeneration.

39. Dr Searle was asked whether in arriving at his opinion he had accepted the plaintiff's complaints of pain. He said that he had done so, because they were consistent with his findings.

40. Dr Stevenson was also cross-examined by telephone. He gave his professional address as the address of his medico-legal organisation in Canberra, and said that he had practised as a consultant physician for over thirty years. I infer that he is no longer in clinical practice. He adhered to his view that the plaintiff had suffered what he described as a relatively mundane moderate-velocity whiplash-type incident, capable of causing acute short lived neck and back pain, but self-limiting so that the accident was no longer an explanation of any pain of which the plaintiff complained.

41. Dr Stevenson appeared to acknowledge that the plaintiff might have suffered some facet-joint damage in the cervical spine, which could not be detected radiologically, but thought it very unlikely that she had suffered any such damage in the lumbar area. He agreed that he had seen patients who had been injured in whiplash-type incidents who had continued to complain of symptoms for years afterwards. He said that this could not be explained by soft-tissue injury, which recovered reasonably quickly. Continuing symptoms in the neck could be explained by facet joint arthropathy.

42. Probed about his experience with patients complaining of symptoms over a period of many years after a rear-end motor vehicle collision, Dr Stevenson conceded that his practice had mostly been in intensive care, looking after patients with major injuries rather than merely neck pain. The medical management of people with whiplash-type injuries to the neck was outside the field in which he had practised as a clinician.

43. I found the plaintiff a generally honest person but thought that she tended to exaggerate to some degree the severity of her pain and other symptoms, and the effect of her injuries on her life. This is neither unusual nor really a criticism. My experience is that most plaintiffs in personal injury actions put their best foot forward during their day in court. They are on that day the focus of attention and are generally somewhat encouraged by the system to make the most of the opportunity. The plaintiff in this case was not assisted by the over-exuberant way in which her injuries and disabilities, and their effects, were particularised in the statement of claim and the statement of particulars. Having said that, I did not gain the impression that the plaintiff was deliberately giving evidence not in accordance with the facts, and I generally accepted her version of events.

44. I had some doubts in one or two areas. For example, she did not strike me as the sort of person who would fail to keep records of expenditure which might be recoverable. A number of times she said in her evidence that money was a problem in continuing with treatment, referring to visits to the general practitioner and to sessions of massage therapy. It would seem to me to be quite out of character with the plaintiff not to have kept details of her expenditure and to have provided those details to her solicitors. I am thus left inclining to the view that the expenditure claimed in her particulars reflects the great majority of the treatment, and the expenditure, necessitated by her injuries. It follows from this that I accept generally that the plaintiff has had neck pain and low back pain, at fluctuating levels, since the accident, but not at such a level that she has required frequent or extensive treatment.

45. It also seems to me, from the evidence generally and from an examination of the employment records in evidence, that the injuries have not resulted in a great deal of time away from work, or lost income. As against that, I generally accept that the plaintiff has probably needed to lie down and rest after a day at work, and to take the opportunity of a few rostered days off between shifts to allow her symptoms to settle.

46. What this means is that I think the plaintiff gave a somewhat embellished history to all of the doctors, and that her symptoms have not been quite as bad as she has made out in the histories she has given.

47. I generally accept the opinion evidence of Dr Searle and Dr Brooder. I prefer the conclusions reached by Dr Searle to those of Dr Stevenson. The fact is that the plaintiff has had symptoms in the neck and low back for more than four years since the accident, with no other traumatic incident which might have caused them, and in circumstances where I accept that she did not have problems with the neck and low back before the car accident. Plainly her injuries did not resolve as quickly as such injuries resolve in the majority of cases. I am not able to make a finding as to what has caused the continuing symptoms (facet joint damage, for example rather than purely musculoligamentous damage) but I am satisfied that there is some underlying damage which has cause the symptoms to persist and that the car accident is the cause of that damage.

48. As to the lumbar spine, I think it unlikely that the bulging of the disks was caused by the collision, and that more probably, despite the plaintiff's relative youth, there was some degeneration of the discs prior to the accident, which was causing no symptoms and, for all I know, might never have caused any symptoms in the absence of trauma such as the plaintiff suffered in the car accident.

49. I am satisfied that it was the car accident which caused the low back condition to become symptomatic.

50. The evidence is that the plaintiff had some pre-accident tendency towards depression. She had some years earlier suffered from post-natal depression and also had a depressive episode which seems to have been related to some behavioural issues within her family. I am satisfied that the accident caused her to suffer from some short-term depression which resolved in a reasonably short period.

51. I invited submissions from counsel as to an appropriate range for general damages for pain and suffering and loss of enjoyment of life. Senior counsel for the plaintiff sought an award of $120,000.00, whilst counsel for the defendant put a range of $55,000.00 to $65,000.00. The figure put forward by senior counsel for the plaintiff was of course based on my accepting the plaintiff's evidence. For the reasons I have explained, I have found that her condition, whilst serious and genuine, is not quite as bad as she made out to the doctors or in the witness box. At the same time, the defendant's range was based on my preferring the opinion of Dr Stevenson to that of Dr Searle, whereas I have come to the opposite conclusion about the evidence of those two doctors.

52. It seems to me on the whole of the evidence that a proper figure for general damages is $75,000.00. I apportion $35,000.00 of that sum to the past, and allow interest on the past component, which should be seen as weighted a little more towards the early period after the accident, of $3,500.00.

53. As to treatment expenses, the plaintiff claims some $600.00 to the date of hearing, to which I would add a further $300.00 to cover the period since the hearing. I am not satisfied that the expenditure on the new bed should be sheeted home to the defendant in full. Counsel for the defendant suggested in his closing address that it would be reasonable, if I were satisfied that the accident were a factor in the purchase, to allow a proportion of the purchase price. I propose to allow $1,000.00, which is roughly a third of the amount claimed. This gives a total of $1,900.00 for past expenditure, attracting interest at the prescribed commercial rate of 9% per annum. The bed was bought in February 2008, and I award interest on the allowance towards the bed of $350.00. I treat the balance of the expenditure as having being paid out at a regular rate since the accident, and allow interest of $180.00

54. As to future treatment, the plaintiff seems to have been paying out about $200.00 per year or $4.00 per week, for a combination of painkillers, general practitioner consultations and the like, and I accept that this will probably continue. She is now 36 years of age and has a life expectancy of the order of 50 years. The 3% multiplier for 50 years is 1362. After the conventional discount for vicissitudes, I allow $4,600.00 for future treatment.

55. As to loss of earning capacity, counsel for the defendant submitted that the plaintiff had not established any actual past loss, or any future loss, and that no allowance should be made. Senior counsel for the plaintiff put the claim in a precise mathematical way, which seems to me unwarranted. This is a case where I am satisfied that the accident has caused some modest impairment of the plaintiff's earning capacity, both past and future. I am also satisfied that more probably than not the plaintiff has earned somewhat less since the accident than she would have earned if it had not happened. I am unable to perform a calculation of the loss, and can do no better than award a round figure to compensate the plaintiff for it. For past loss of earnings I allow $2,500.00.

56. Although the amount awarded is a rounded approximation, it seems to be that nevertheless the plaintiff is entitled to interest on it at commercial rates, and to an award for the loss of associated superannuation benefits. I allow $500.00 for interest and $250.00 for loss of superannuation benefits.

57. I am equally satisfied that the impairment of the plaintiff's earning capacity will continue into the future. The extent to which this will result in actual financial loss is even less something in relation to which I can arrive confidently at a precise figure. The plaintiff is 36 and would probably have worked until age 60 or 65, that is 24 to 29 years. The 3% multipliers are 897 and 1016. The present value of a loss of $50.00 per week for those periods would come within a range of about $45,000.00 to $50,000.00. After making the conventional reduction for vicissitudes, a figure of $40,000.00 seems appropriate to compensate the plaintiff for impairment of earning capacity for the future. In addition I would award $4,000.00 for loss of future superannuation benefits.

58. There is a substantial claim for a house cleaner and a gardener, and for the commercial value of services which have been performed by family members and friends for the plaintiff. I am satisfied on the evidence that in the early stages after the accident the plaintiff required some additional help around the house with activities she would normally have attended to herself, and that this need was to an extent filled by her then domestic partner. I note at the same time that he was not called to give evidence and that there was no explanation for this. I also accept that the plaintiff has had some paid housekeeping help. For some time she lived in a house without a garden or lawn but by the time of the hearing she was again living in a house on a larger block of land and needed some assistance. I think on the whole of the evidence that the plaintiff has probably justified a claim for two hours' help per week at the agreed Griffiths v Kerkemeyer rate of $21.00 per hour. I allow $10,000.00 from the date of the accident to judgment, plus interest at commercial rates of $2,000.00. For the future I allow $42,000.00, which is roughly equivalent to the present value of a continual loss of $50.00 per week for about 35 years, less the usual deduction for vicissitudes.

1. Upon consideration that amount seems to me to represent a reasonable reflection of the effect of the defendant's negligence upon the plaintiff. There will be judgment for the plaintiff for $186,780.00. I shall hear the parties about costs.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Counsel for the plaintiff: Mr RL McIlwaine SC & Mr ID Bradfield