Eames v Shain [2012] ACTSC 116

Supreme Court of the ACT|2012-07-20

1. verdict and judgment for the plaintiff in the sum of $71,190.

2. 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.

1. Rhiannon Eames was involved in a motor vehicle accident on 3 April 2008 when the car driven by Rebecca Shain collided with the left hand side of her vehicle.

2. The nature and extent of the plaintiff's injuries having regard to her background and prior medical history.

3. The extent to which subsequent events were the cause of the plaintiff's current condition.

4. The accident occurred on the morning of 3 April 2008 in Redfern Street, Macquarie, ACT. The defendant was driving her Toyota Corolla from a service station onto Redfern Street. She needed to cross the kerb side lane of traffic and enter the lane adjacent to the median strip in order to continue her journey.

5. The driver in the kerb side lane stopped to allow her to cross that lane. The plaintiff was driving in the lane adjacent to the median strip. The defendant drove into that lane and the front of her car collided with the front of the plaintiff's car.

6. The defendant estimated that her speed at the time of impact was about 5km an hour. She said she was edging into the lane.

7. The defendant said that the front of her car was damaged but she was able to drive it after impact onto the median strip. The plaintiff also drove her vehicle onto the median strip. The defendant said she suffered no injury and she described the impact as having very little force. Her car was subsequently repaired.

8. The defendant agreed that she did not see the plaintiff's vehicle prior to the collision and agreed that her vision was not restricted by road conditions. She said she definitely remembered moving slowly, although the police report (Exhibit 3) recorded that she needed to cross a steep gutter and to accelerate to get onto the road. This report also noted that the defendant's visibility of the plaintiff's car was obscured by other traffic.

9. The plaintiff's evidence of the accident painted a different picture. She said she was driving in the lane adjacent to the median strip when the defendant's car smashed into the left hand side of her car. She did not see the defendant's car prior to impact.

10. The plaintiff said that she was moving very slowly in peak hour traffic. She denied that the defendant crept into her traffic lane. She said that she travelled at sufficient speed to: ...total her car and cause quite a lot of damage to mine. (Transcript 53.6).

11. She said the defendant's car had to be towed away because: ... it was completely demolished. (Transcript 53.37).

12. The plaintiff said that the force of the collision was sufficient to cause the right side of her head to impact with the roof of her car and to push her car over a high gutter onto the median strip.

13. The plaintiff's son, then aged 5, was in the car with her, sitting in the passenger seat, that is, on the side where the collision took place. He was checked by a doctor after the accident and was uninjured.

14. The plaintiff took exception to the description of the accident as trivial.

15. The plaintiff said that before the accident her life was in good order. She said she was living in shared rented accommodation with her young son, having managed to end a six year relationship with her physically and mentally abusive former partner. She said she had a job as a customer relations consultant in a car showroom that she enjoyed very much. She said she had no physical or psychological conditions that interfered with her life style.

16. The plaintiff's mother described the plaintiff as a bright normal girl prior to the accident. She said she had many friends, and she displayed no symptoms of anxiety or other psychological conditions.

17. The plaintiff claimed that as a consequence of the accident she suffered neck and back injuries that caused unremitting pain and that she developed a debilitating Post Traumatic Stress Disorder and an anxiety condition.

18. She claimed that the result was that she resigned from her job, she resumed the relationship with her abusive former partner, she was evicted from her accommodation because she was unable to pay her rent and she became pregnant.

19. She claimed that her physical and psychological conditions precluded her from employment to the date of the hearing and required the provision of personal and domestic assistance and ongoing medical treatment. In her evidence to the court the plaintiff said that from the time of the accident to the time of the hearing her neck and back pain were constant and severe. She said that the delivery of her child in February 2009 was complicated by back pain and that this aggravation of her back condition caused her difficulty in lifting the child for the first few weeks after her birth.

20. She said she suffered from headaches that were sufficiently severe at times to require one or two days bed rest. Her neck hurt when she turned it to the right and she had difficulty therefore when driving in checking the blind spot.

21. She had pain in her legs from her hip to her buttocks radiating to her knees and even her ankles at time when her pain was significantly worse. She said she suffered more pain in the mornings because of stiffness. She also said she had pain in her shoulders.

22. She said that all of this pain was constant and unremitting.

23. The plaintiff also said that she was unhappy when people were around her. Her temper was volatile, she was unhappy, angry and she suffered from panic attacks.

24. The plaintiff told the court that at the time of the hearing;

Right now? It is killing me. I want to lay down on the floor and give the rest of my - testimony on the floor, if I could that would be great. My neck and shoulders are really sore. Today is not a normal day, though because today is obviously a little bit more stressful than normal for me. [Transcript 29.13]

25. Her pain continued to cause her difficulty in lifting her now three year old daughter. It caused her problems with her house work and she could not actively participate in games with her children.

26. The plaintiff said that she learned to live with her pain to some degree and that she managed it by lying down with heat packs, walking around to stretch and taking Panadol.

27. She has been in her current relationship for nine months. She said that there were problems with her sexual activity as a result of her pain.

28. The plaintiff's mother said that after the accident the plaintiff's back was very bad and she needed help getting around and she was not very mobile. She said the plaintiff could do nothing at all and she was bed ridden for quite some time. She said the plaintiff's pain was very severe. The plaintiff's mother said that the plaintiff continued to complain of back and shoulder pain and headaches and that she had asked her to take the children so that she could have some relief. She said that there was a huge change in her daughter's personality. She said that she over reacted, she was emotional and she cried easily.

29. There were a number of aspects of the evidence that required consideration to determine the extent to which the physical and mental conditions of which the plaintiff complained were in fact the result of the accident.

30. The plaintiff disclosed that prior to the accident she suffered neck and back injuries in the course of her employment at a child care centre.

31. The medical records indicated that she suffered a neck spasm in August 2006. There was no record that this presented her with ongoing problems.

32. In November 2006, the plaintiff suffered from low back pain that was diagnosed as muscle strain that worsened and extended into her sacro-iliac joint. The plaintiff claimed workers compensation as a result of this injury and she worked for restricted hours for a number of months. She was treated with physiotherapy.

33. In January 2007 she ceased work at the child care centre. She continued to have physiotherapy and she discussed changing the nature of her employment and retraining as a receptionist.

34. There were further complaints of back pain in February 2007.

35. On 23 March 2007 the workers compensation insurer declined to meet her claims further. The plaintiff said that at that point her back felt better although her pain continued to be aggravated by activity involving heaving lifting, such as moving house, or sleeping awkwardly. Physiotherapy continued until May 2007. The plaintiff also undertook a supervised gym programme, the purpose of which was to strengthen her back muscles.

36. The basis upon which further workers compensation payments were declined was the report of Dr. Anthony Smith, dated 2 March 2007. Dr. Smith reported that clinical examination showed no abnormality. He said that the incident of November 2006 had resolved and the symptoms that the plaintiff suffered in early 2007 were unrelated. He suggested that the plaintiff have an MRI scan because a CT scan taken at that time showed abnormalities at L3/4, L4/5 and L5/S1. Dr. Smith said that in a 23 year old this suggested an underlying abnormality. He said that the abnormality at L5/S1 was degenerative and not post traumatic.

37. Medico-legal experts retained for the purposes of the current claim were divided on the extent to which the plaintiff continued to suffer from this injury at the time of the motor vehicle accident. Dr. Jackson and Dr. Brooder said that the accident aggravated this prior condition. Dr. Bornstein raised aggravation as a possibility but said that he did not have adequate radiological information to form a final conclusion. Dr. Stubbs said that the plaintiff recovered from the prior injury and that her condition after the motor vehicle accident was unrelated to the earlier back injury.

38. In December 2006 the plaintiff's mother took her to her general practitioner because she was concerned about her mental health. The general practitioner's notes record that the plaintiff was depressed and that she was suffering from an adjustment disorder. Zoloft was prescribed.

39. At a subsequent consultation her general practitioner noted that the plaintiff felt that Zoloft was helping. A second prescription for Zoloft was provided in January 2007 and in March 2007 the plaintiff was referred to Ms Wilson for psychological counselling.

40. The plaintiff did not disclose this prior episode to Dr. Samuell, psychiatrist. She attempted to down play its significance by stating that she took only one or two Zoloft tablets because of the side effects. This was inconsistent with the medical records.

41. There was no evidence that she pursued the psychological treatment that was recommended by her general practitioner.

42. The plaintiff said that after the accident she was in shock and she was suffering from pain in her neck, back and right leg. She said she was tearful, confused and shaky. She telephoned her former partner who drove her to obtain medical treatment. This treatment was first sought at a hospital where after waiting, untreated, for some time, the plaintiff left and went to her general practitioner, Dr. Choong.

43. The plaintiff next consulted Dr. Choong on 23 April 2008. He reported that on that date she had made a good recovery from her injuries but she continued to experience mild to moderate pain in her neck and some pain in her left shoulder.

44. Dr. Choong examined the plaintiff on 28 May 2008 when she reported aggravation of her neck pain. On examination there was soft tissue tenderness of the neck with restricted mobility.

45. Dr. Choong referred the plaintiff for cervical spinal X-rays and physiotherapy. The plaintiff did not proceed with either of these procedures. Dr. Choong's prognosis was for full recovery from the injuries in good time.

46. Dr. Choong reported on 25 June 2008 that the plaintiff complained of pain in the right side of her neck and aggravation of pre-existing low back pain. He said that on examination she was in good general condition and neck mobility was good in all directions with aggravation of pain when the neck was rotated to the left. Her lumbar spine was tender to pressure with limitation of lumbar flexion. He concluded that she suffered from whiplash neck injury and aggravation of pre-existing low back pain. He prescribed pain killing and anti-inflammatory medication.

47. The plaintiff also complained of severe neck pain from the motor vehicle accident on 28 May 2008 when she consulted Dr. Wessell, another general practitioner. No report from Dr. Wessell was in evidence.

48. Although the plaintiff consulted Dr. Wessell during the pregnancy that resulted in the birth of her daughter in February 2009, there was no clinical record of complaint of neck or back pain in the balance of 2008 or 2009. Subsequent complaints were recorded in January, August and October 2010 and in July 2011. The medical notes in evidence ceased in December 2011. The plaintiff agreed that it was possible that she had not consulted any general practitioner or any medical practitioner for treatment since July 2011. She said this was because there was nothing that they could do to assist her.

49. Dr Wessell's note of 12 January 2010 recorded that the plaintiff complained of fairly severe pain in her neck and low back that she attributed to an accident in April 2008. She also complained of pain in her right hip. Further complaints were recorded in August 2010 when an X-Ray and CT scan were arranged.

50. The plaintiff also complained of moderate neck pain and stiffness and quite severe low back pain radiating into her right leg in October 2010.

51. The next record of a complaint of back pain was on 26 July 2011 after the plaintiff fell while carrying a washing basket up stairs.

52. The first record of complaint of psychological injury was Dr Wessell's note of 5 January 2011 when the plaintiff presented with depression. Dr Wessell listed amongst the matters discussed the abusive relationship with the plaintiff's former partner, the death of a friend, the car accident and the unpleasant environment in which the plaintiff was living.

53. As a result of the complaint of depression the plaintiff was referred to Ms O'Sullivan, psychologist, whom she consulted initially in January 2011 and then in March, April and May 2011, there being a record of six consultations in total.

54. Ms O'Sullivan diagnosed Post Traumatic Stress Disorder with secondary Depression and Anxiety as a result of the accident, having been given a history of ongoing back and neck symptoms affecting the plaintiff's mobility, and of shock and distress at the time of the accident, flashbacks and nightmares, fear of travelling in motor vehicles, agoraphobia, as well as distress at the damage to her car, the loss of her job and the resumption of the abusive relationship with her former partner. She also noted the plaintiff's problems with her accommodation at the time.

55. Ms O'Sullivan recommended psychological therapy and psychotherapy. Aside from two further sessions with Ms O'Sullivan, it appeared that the plaintiff had not received the treatment recommended. Ms O'Sullivan also recommended the prescription of an anti-depressant medication. The plaintiff was prescribed Cymbalta by her general practitioner. She said this assisted her and that she continued to take it but there was no evidence of consultation with a doctor to confirm that prescriptions were still being provided to the date of the hearing.

56. Prior to the accident the plaintiff had been in a relationship with her former partner for several years. She described the relationship as both physically and mentally abusive. She denied that this abuse had any ongoing consequences. She said that the abuse occurred with such regularity that it lead her to believe that it was a normal way of life.

57. The plaintiff said that the relationship was terminated some months prior to the accident but that after the accident it was resumed. It was terminated in the course of the plaintiff's unplanned second pregnancy. As a consequence she became the principal carer of two young children.

58. After moving addresses a number of times, the plaintiff was provided with public housing. She was unhappy in this housing because other tenants behaved in a manner that was disturbing and threatening towards her.

59. In November 2008 the plaintiff was served with a Personal Protection Order. The plaintiff disputed the grounds for the order, suggesting that it was prompted by malice on the part of the complainant. She was subsequently spoken to by police as a result of a breach of the order.

60. On 16 June 2009 the plaintiff told her general practitioner that she had been assaulted by her former partner who punched her on the left side of her jaw and breast ten days before. She complained of jaw pain and inability to open her mouth properly.

61. After the accident, the plaintiff for a period of time behaved in a manner that was described as wild. This behaviour involved going out with a group of friends at weekends. Her activities at that time included dancing and drinking alcohol to excess. Her children were cared for by her former partner or by her mother.

62. The engagement in this behaviour challenged the plaintiff's evidence of social isolation, agoraphobia and unremitting pain. The plaintiff said that she was drinking to excess in order to mask her pain and that, before she left home on the evenings when she engaged in this wild behaviour, she was already drunk and disinhibited. She agreed that the day after these activities, her pain was increased. She said she then drank to excess in order, once more, to mask the pain.

63. The plaintiff was arrested in the early hours of 4 December 2009. She was described in a police case note as engaging in behaviour that was violent, abusive, aggressive, irrational, unstable and showing signs of intoxication. Her refusal to comply with police directions and subsequent struggle lead to police performing a take down manoeuvre in the course of which she was hand cuffed and placed in a caged vehicle and taken to the Regional City Watch House. The plaintiff complained that she was assaulted by police during the course of the take down procedure resulting in severe injuries and wounds to her thigh, shoulder and chin. The police report stated that while in the caged vehicle the plaintiff engaged in violent behaviour. The plaintiff was charged with contravening a direction to move on.

64. In July 2011, an incident occurred at the home of the plaintiff's former partner. The plaintiff said that she was assaulted by her former partner and pushed down a number of stairs, landing on the ground. He bent her fingers backwards and punched her in the head.

65. The plaintiff consulted Dr. Wessell after this incident. The notes recorded that the plaintiff complained that he kicked her in her right thigh and punched her stomach and bent her fingers backwards. The doctor noted that the plaintiff's fingers were bruised and swollen and that she had areas of tenderness on her right thigh and the right side of her skull.

66. The plaintiff claimed that the shock of the accident unbalanced her to the point where she resigned from her employment as a customer relations consultant. She almost immediately regretted her decision to resign. Her employer, Mr Newman, had a different recollection of the circumstances of the plaintiff's resignation. He said he clearly remembered that the plaintiff entered his office on 11 April 2008 and handed him her immediate resignation, giving no reason for so doing. He called in her manager, Mr Farmer, to witness the plaintiff's decision to leave on the spot without notice.

67. The plaintiff said she was under pressure at work because of the extent to which she had taken sick leave. Mr Newman denied that the plaintiff was under any pressure. He said that his company had sent the plaintiff to Melbourne for training. He said she was still within her initial probationary period of three months from the date of her engagement in February 2008. He said her performance was below average but he maintained an expectation that it would improve.

68. Mr Newman's evidence also contradicted that of the plaintiff and her mother concerning the extent to which she was disabled after the accident. Mr Newman observed the plaintiff when she returned to work after the accident and he noted no indication of pain or discomfort. He said she appeared to be moving normally. He described the layout of the car sales showroom and the opportunity he had to observe his employees who worked in an open area outside his glass windowed office. He agreed that he did not watch the plaintiff for the whole of the time that she was in the showroom but said he had ample opportunity to observe her and, on every occasion when he did so, he could see no evidence of disability or pain.

69. Mr Jackson examined the plaintiff in July 2008. He reported that she told him that her headaches were resolved and that she continued with pain in her neck and shoulders, extending into her arm and with constant low back pain. The plaintiff told him that she was managing her self care and house work. She said she was very social and enjoyed socialising with her friends at weekends. On examination, he noted restricted range of movement and complaints of pain and stiffness. He observed some over reaction to pain and some vocalisation of pain response. He said the plaintiff had aggravated her pre-accident back condition and that this had been aggravated further when she moved house and returned to work at a child care centre. His diagnosis was of soft tissue injury to the cervical spine and aggravation of a pre-existing low back condition that was possibly discogenic in origin.

70. Mr Jackson's prognosis for the neck was good. He considered that the soft tissue injury to the neck should resolve. He thought the aggravation of the plaintiff's back would resolve, although, he did not know at that stage whether it would return to its pre-accident status. Mr Jackson recommended that the plaintiff have an X-ray and an MRI scan, although it was necessary that those processes be deferred because she was at the time 14 weeks pregnant. He said she should undergo physiotherapy in order to establish an exercise programme.

71. Dr. Brooder examined the plaintiff in November 2008 and August 2011. The plaintiff complained to him of constant variable back pain that was aggravated by various activities, such as repetitive forward bending, lifting, prolonged sitting and wearing high heeled shoes. She complained of constant variable aching neck pain, that extended to her right shoulder and that impaired her head and neck mobility. She complained of headaches at times when neck and back pain increased.

72. Dr. Brooder reported that the plaintiff told him that she had residual intermittent low back pain prior to the accident and that she had been able to return to her day to day activities at work, although she had been unable to continue to work at the child care centre.

73. Dr. Brooder said there were no findings of significance on examination. He diagnosed aggravation of pre-existing degenerative changes in the plaintiff's lumbo-sacral spine and a musculo ligamentus injury in the neck with secondary muscle spasm. He said a prognosis in 2008 was premature and like Mr Jackson, he recommended X-ray, MRI scan and physiotherapy.

74. In August 2011 the plaintiff reported that her symptoms had deteriorated, and that she had constant pain in her back and neck. There was pain in the mid lumbar region, that extended into the lower back and was more severe on the right side where it extended into her buttock, right thigh and knee. Her pain was aggravated by physical activity, as it had been in 2008. She told Dr. Brooder that she suffered from headaches at times with nausea and vomiting. The plaintiff also told Dr. Brooder that she was consulting a clinical psychologist every two weeks. This did not accord with the psychologist's records.

75. Dr. Brooder noted the same absence of significant findings on examination.

76. Dr. Brooder appeared to be the only medico-legal expert who had access to a CT scan that was undertaken on 6 October 2010. Unlike Dr. Smith, he thought there were no abnormalities at the L3/4 and L4/5 levels. At L5/S1 there was a posterior and right postero-lateral bulge of the disc annulus that in 2007 appeared not to displace the emerging right S1 nerve root. In 2010 the disc material extended into the right lateral recess where it contacted and partially compressed the origin of the right S1 nerve root.

77. Dr. Brooder maintained the same diagnoses and said the prognosis was guarded because the plaintiff had had symptoms for three and one half years without improvement and the disc protrusion had increased. He said there was also a significant contribution to her symptoms from her Post Traumatic Stress Disorder associated with anxiety and depression.

78. Dr. Bornstein examined the plaintiff in September 2009. He was told then that the condition of the plaintiff's neck had improved since the accident but there had been no improvement in the symptoms of her back. He reported that there were no objective findings on examination. Dr. Bornstein questioned whether there had been an aggravation of the prior injury to the plaintiff's lumbar spine. He recommended physiotherapy and said that the plaintiff's neck would further improve, although the condition of her lumbar spine might not further improve.

79. Dr. Stubbs in February 2012 reported that the plaintiff told him that she continued to see the psychologist and that her general practitioner continued to prescribe the anti-depressant Cymbalta. There were no medical records to support either of these claims.

80. The plaintiff complained to Dr. Stubbs of back pain, neck pain, headaches with nausea, dizziness and Post Traumatic Stress Disorder. Dr. Stubbs said that the plaintiff's neck symptoms appeared to have settled. He also said that there were no signs of ongoing problems in the plaintiff's low back. He said she lacked core muscle strength and that this, not pain, caused her to perform poorly on functional testing.

81. Dr. Stubbs accepted the plaintiff's statement that the pre-accident work related back injury had settled at the time of the accident and that this injury did not contribute to whatever was suffered in the accident. He said that although the plaintiff continued to complain of pain the only findings on examination were of less than average core strength. He questioned the diagnosis of Post Traumatic Stress Disorder and suggested that a further opinion be obtained.

82. Dr. Stubbs noted that there had been many events that affected the plaintiff at or about the time of and since the accident and that it was difficult to determine what impact the accident had. He said that there was no evidence of lasting injury to plaintiff's neck or back. He considered the only treatment necessary was appropriate physical conditioning.

83. Dr. Samuell, psychiatrist, examined the plaintiff in April 2012. He reported some information provided by the plaintiff that was inconsistent with her evidence to the court. The plaintiff told him she felt immediate burning pain in her neck at the time of the accident. She told the court that she did not initially feel any pain, and that pain developed as she waited for treatment at the hospital. Dr. Samuell reported that the plaintiff's employment was terminated soon after the accident because she took time off. According to Mr Newman, it was the plaintiff's decision to hand in her resignation. The plaintiff told Dr. Samuell that she had no prior psychiatric history.

84. The symptoms recorded by Dr. Samuell were that the plaintiff was worried about her future, that she had difficulty getting to sleep, that she had a fluctuating appetite, and that she was angry and frustrated most of the time. Notwithstanding these complaints of symptoms, his opinion was that the accident had no explanatory value to her subsequent behaviour. He said the plaintiff displayed some borderline personality traits and a significant personality instability that was unrelated to the accident.

85. Dr. Samuell said the plaintiff showed no features of Post Traumatic Stress Disorder. She was not suffering from anxiety or depression and she did not need to continue to take the anti-depression medication. He said that there was no compelling evidence of aggravation of any prior psychological difficulty and no treatment was required.

86. Both Dr. Samuell and Ms O'Sullivan appeared not to have been informed of the panic attacks of which the plaintiff gave evidence.

87. I found that the accident was relatively minor in nature. The plaintiff and the defendant each said that her car was proceeding at slow speed. After the accident both cars were capable of being driven. I appreciated that there were circumstances in which a minor accident could result in serious injury but I did not accept that this was the situation in the plaintiff's case.

88. I rejected the claim of physical injury to the extent complained of by the plaintiff for the following reasons:

1. I considered that both the plaintiff and her mother exaggerated the extent of her injury. The plaintiff's mother claimed that she was bed ridden after the accident. This was inconsistent with the medical records both at the time of and since the accident and with Mr Newman's observations of the plaintiff after she returned to work within days of the accident.

2. The plaintiff's complaints of severe constant unremitting back pain were inconsistent with the medical records. Dr. Choong and Mr Jackson both initially indicated that the plaintiff suffered injuries and levels of pain that were of moderate severity and expected to resolve. There were subsequently no records of complaint or treatment between June 2008 and January 2010. After that there was reference to back or neck pain on only three further consultations. The plaintiff had no treatment in the 12 months from the July 2011 to the date of the hearing.

3. All of the medico-legal experts reported that there were no observable findings, disability, or injury on examination.

4. The progression noted on the CT scan was equally explicable by reference to natural progression of the condition of the plaintiff's spine or to the subsequent events of more significance than the forces involved in the motor vehicle.

89. I rejected the claim of psychological injury to the extent complained of by the plaintiff for the following reasons:

1. No complaint was made or treatment provided for shock or other psychological injury until January 2011, more than two and one half years after the accident.

2. I rejected as not credible the claim that an accident of relatively minor significance was capable of producing a psychological condition that directly, or on a compounding basis, resulted in the consequences complained of by the plaintiff. This was particularly so, having regard to the history of significant stressors to which the plaintiff was exposed both before and after the accident.

3. It was clear that the plaintiff had a somewhat volatile personality and I accepted that her history and presentation indicated an element of psychological disorder. I accepted Dr. Samuell's opinion that this was the result of personality instability and not the motor vehicle accident.

4. As with the plaintiff's complaint of physical injury there was no ongoing evidence of treatment for the alleged psychological injury through consultation or medication.

90. In addition to these findings I took into account the following aspects of the evidence:

1. Since the date of the accident other events of significance to the plaintiff's physical and mental health had occurred. They included the unplanned pregnancy and the subsequent further breakdown of her relationships, two claimed assaults by her former partner, her situation in unsatisfactory public housing and the police arrest incident in December 2009.

2. There was inconsistency between the plaintiff's complaint of constant severe pain, social isolation, anxiety and depression and her capacity to socialise each weekend with a group of friends, drinking to excess.

3. I preferred the evidence of Mr Newman that the plaintiff was placed under no pressure and that her resignation was sudden and unexplained. I did not accept that she resigned as a consequence of any injury, physical or psychological suffered in the accident.

91. I found that as a consequence of the accident the plaintiff suffered:-

2. Aggravation of a pre-existing condition in her lumbar spine that first manifested in the course of her employment in the child care centre;

3. Aggravation of her pre-existing personality instability.

92. On the basis of the medical records of May and June 2008 and Mr Jackson's report of July 2008, I found that the effects of these injuries continued for a relatively short period after the accident.

93. It was difficult in the absence of medical records to determine when the injuries suffered in the accident resolved. I concluded that it was appropriate to allow a period to the end of 2008 during which the plaintiff recovered from injuries of moderate severity.

94. On this basis, I allowed $40,000 for general damages, allocating the whole of that sum to past pain and suffering. I allowed interest in the sum of $3,200.

95. I have already noted that, on her return to work after the accident, the plaintiff resigned from her position as a customer relations consultant. She then secured employment in a child care centre. I accepted that at this stage her condition was such that it was not reasonable to expect that she could continue with this work.

96. The plaintiff has not been in paid employment since leaving the child care centre. Part of this period of unemployment was explained by her pregnancy, the birth of her daughter in February 2009 and a reasonable period thereafter to allow for her to fulfil her obligations to her baby.

97. The plaintiff accepted that she did not seek employment at any time after this period expired. She was accepted into a Bachelor of Science degree course, majoring in psychology at the University of Canberra in August 2011. Her attempt to commence this course failed in early 2012. The plaintiff attributed this failure to her psychological condition claiming that she suffered panic attacks after a few weeks of study. She deferred commencement until 2013.

98. The plaintiff claimed past loss of income at the rate of $780 gross for two and one half years, allowing a period for her pregnancy and care of her child. She claimed future income loss at the same rate for four years to allow for the completion of her degree course and consequent retraining into the work force.

99. Of the medical practitioners consulted, only Ms O'Sullivan suggested that the plaintiff was disabled to the point where she could not return to fulltime work. She expressed this opinion with the qualification that she had not discussed the plaintiff's long term future and career during the sessions that they had to the date of her report in April 2011. Dr Samuell disagreed and said that there was no psychological disorder that precluded the plaintiff from returning to fulltime employment. Dr. Brooder expressed no opinion. Dr. Bornstein and Dr. Stubbs were of the opinion that the plaintiff was capable of returning to fulltime work. Dr. Stubbs thought that she could return to work without restriction. Dr. Bornstein suggested that she return to work that did not involve bending, lifting or carrying on a repetitive basis.

100. I was not satisfied that the plaintiff was incapable, as a result of injuries suffered in the motor vehicle accident, of returning to the work in which she was employed at the time of the accident by a date that was six months after the birth of her daughter, that is August 2009. It was apparent from the evidence that at the time of the accident the vulnerability of the plaintiff's lumbar spine was such that child care work was no longer a suitable option for her.

101. In the circumstances I allowed the plaintiff a moderate sum to compensate for the four days of employment lost immediately after the accident and for the period after she ceased work in the child care centre until her pregnancy advanced to the point where she would have ceased employment. The amount allowed was $25,000 inclusive of superannuation and interest.

102. The plaintiff claimed a requirement for 14 hours of care for six weeks after the accident. She claimed for 10 hours per week for two and one half years to the hearing and 10 hours per week for 10 years into the future.

104. Firstly I considered that the evidence of the plaintiff and her mother exaggerated the extent to which she required attendant or domestic care or assistance with her children after the accident. The second reason was that, once more, there was no medical evidence to support the plaintiff's claim for assistance with housework or other domestic obligations.

105. I resolved this part of the plaintiff's claim on the basis that it was reasonable that she be provided with the care claimed for the initial six weeks after the accident and that it was reasonable, having regard to her domestic situation, that she have a moderate amount of assistance for a further six months. I allowed two hours per week for this period and awarded $1,846 as claimed for the initial six weeks and $1,144 for the following six months.

106. I found there was no evidence to support the requirement, as a result of the accident, for domestic assistance in the future.

107. The plaintiff claimed a moderate sum for past out of pocket expenses. I did not accept that the need for the treatment that was provided by Ms O'Sullivan commencing in January 2011 was generated by any injury suffered in the accident and this part of her claim was therefore rejected. I similarly rejected the claim for expenses of the dental consultation with Dr Tucker.

108. The remaining expenses were incurred in late 2010 when, on my findings, the plaintiff had recovered from the injuries that were the result of the accident.

109. I did not accept that the accident generated a need for medical treatment in the future.

110. I therefore made no allowance for out of pocket expenses.

111. The plaintiff's claim was assessed as follows:

112. Verdict and judgment for the plaintiff in the sum of $71,190.

113. 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.

I certify that the preceding one hundred and fifteen (115) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Sidis.

Solicitor for the Plaintiff: Maliganis Edwards Johnson

At a glance

Court

Decision date

Source

Judgment (131 paragraphs)

Parties