Jackson v Robinson

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

1 HIS HONOUR: This is a claim for damages for personal injuries arising out of a motor vehicle accident which occurred on 6 March 1996. Breach of duty of care has been admitted by the defendant and thus the matter is one calling for the assessment of damages pursuant to the Motor Accidents Act 1988 should the plaintiff qualify. 2 In the light of the concession that the defendant was in breach of his duty of care it is not necessary for me to go into the facts of the accident in great detail. Suffice it to say that the plaintiff was driving a motor vehicle which was stationary in a line of traffic when the defendant's vehicle collided with the rear of the vehicle the plaintiff was driving. In these circumstances the concession made is hardly surprising. 3 Following the accident the plaintiff attended the Wallsend Hospital Primary Care Centre where she was complaining of pain in her low back and neck. At the time the plaintiff was employed as an apprentice electrician with Port Waratah Coal Service. 4 At the Wallsend Hospital, Dr Accardi concluded that the plaintiff had suffered soft tissue injuries to her neck and low back and prescribed medication and arranged for the plaintiff to have physiotherapy and a neck brace. He certified her unfit, at that stage, for work for one week. 5 She underwent the prescribed physiotherapy and attended her general practitioner, one Dr E Balaz. The plaintiff continued to complain of pain in her neck and low back and remained off work. 6 By mid April the plaintiff was complaining of headaches, pain radiating into both her arms from her neck, pins and needles in her right hand, interscapular pain. As far as her back was concerned she noticed that the pain was radiating from her low back down to the back of her right calf. She also complained of pain radiating from her back down her left knee to knee level. She remained off work. 7 On 15 May 1996 she was referred to Dr A Isaacs, orthopaedic surgeon. The plaintiff's complaints were similar to those she had been making to Dr Balaz. Dr Isaacs noted also tenderness over the mid cervical and upper thoracic spine together with tenderness over associated muscles. He also noted tenderness over the L4/5 and L5/S1 area in her low back mainly over the right sacroiliac joint. Sciatic stretch testing proved positive. 8 Following that episode she underwent a bone scan at Dr Isaacs' direction which in Dr Isaacs' view disclosed mild to moderate bilateral sacroiliitis. 9 Her symptoms persisted. A concern that the plaintiff's problems stemmed from rheumatic causes was dispelled following an examination by a Dr S Ratnarajah. 10 She continued with physiotherapy including hydrotherapy. She came, in September 1996, under the care of the Hunter Rehabilitation Service. However, her symptoms persisted and she complained that the hydrotherapy was causing her severe pain. 11 The plaintiff complained, as the year went on, of suffering from spasms in her right leg and bad pain in her neck, low back and between her shoulder blades and down one of her arms together with headaches. 12 On 5 December 1996 the plaintiff awoke with severe pain in her left lower back which was radiating down her left leg. She was taken to Maitland Hospital casualty but was not admitted as an in-patient. The plaintiff's symptoms persisted. 13 In September 1996 Dr Isaacs had advised that the plaintiff should undergo a caudal block injection for diagnostic purposes. That procedure was carried out on 7 January 1997. She obtained temporary relief of her buttocks and leg pain but by mid January the pain had returned. 14 In February, at Dr Isaacs direction, she underwent a CAT scan of her lumbar spine. In the view of the radiologist and Dr Isaacs the CAT scan disclosed a disc herniation at the posterior aspect of the L5/S1 level encroaching upon the first sacral nerve root. 15 This led Dr Isaacs to conclude that the plaintiff should undergo surgery to her low back. She was then sent to Dr Ghabrial another orthopaedic surgeon. He agreed with Dr Isaacs' diagnosis being of the view that the plaintiff had suffered a disc prolapse at L5/S1 in the accident. He agreed that surgery was required. 16 In May 1997 she was sent to Dr Hopcroft, orthopaedic surgeon, by her solicitors. He agreed with the view expressed by Drs Isaacs and Ghabrial that the plaintiff had suffered a L5/S1 disc injury. He felt that before surgery was undertaken the plaintiff should continue with a conservative regime including physiotherapy and hydrotherapy. 17 The plaintiff, I should observe, at this stage, married on 1 March 1997. She was reluctant to undergo surgery. 18 In August 1997 her concerns about her condition led her to consult a psychiatrist, Dr L Lambeth, who diagnosed that the plaintiff was suffering, at that time, from mild depression consequent upon her injuries. That doctor felt that the plaintiff required pain management. 19 She remained off work and continued to consult Dr Balaz' practice. She occasionally saw Dr Nymeyer, Dr Balaz' partner. 20 Eventually, she was sent to see a neurologist, Dr Parsons. A CAT scan of her neck in October 1997 revealed no abnormality. 21 Her symptoms persisted and she continued to see her general practitioner. She saw Dr Hopcroft again in December 1997 who, while finding it difficult to explain why it was she complained of right-sided sciatica when the CAT scan revealed left-sided protrusion of her L5/S1 disc. However, he was not convinced that the plaintiff should undergo surgery. 22 Eventually, the plaintiff, on 15 January 1998 underwent further MRI scans of both her lumbar and cervical spines. Again, that scan was thought, by the radiologist and by Dr Isaacs, to reveal a disc protrusion at the L5/S1 level with consequent narrowing of the disc space at that level. 23 Again, both Dr Isaacs and the radiologist agreed that the MRI scan disclosed disc bulging at the C4/5 and C5/6 levels. Dr Isaacs was of the view that at the C5/6 level the plaintiff had suffered a possible minor annular tear. 24 She saw Dr Hopcroft in March 1998. As I understand his report, his views as to the plaintiff's injuries coincided with those of Dr Isaacs. 25 Her symptoms persisted and while the plaintiff occasionally ceased physiotherapy treatment it seemed that she did, in fact, have some therapy of this type during 1998. She was recommended to have massage therapy and she commenced a regime of that treatment on 21 January 1999. 26 In February 1999 she was again the victim of a motor vehicle accident, once more when a vehicle in which she was a passenger was hit from behind. It was the plaintiff's evidence that while this accident aggravated her pre-existing condition, that aggravation lasted for only two weeks and then her condition returned to that which had previously been the case. 27 She had become pregnant at this stage and indeed gave birth to a female child on 30 June 1999. The plaintiff claims that her pain in her back and neck had continued. She was seen by Drs Isaacs and Hopcroft in 1999. Their views remained the same as before. 28 A Dr R Smith, orthopaedic surgeon who saw her on behalf of her solicitors was of similar views as those expressed by Drs Isaacs and Hopcroft. 29 At all times following the accident the plaintiff has been certified by consultant orthopaedic surgeons, particularly Dr Isaacs, that she is unfit to carry out the work of an apprentice electrician. Indeed, it is the view of Drs Hopcroft, Smith and Isaacs that she is permanently unfit for work of an tradesman electrician. 30 However, those views are not those of others who have seen her. On behalf of the defendant she has been seen on a number of occasions over the years by Dr J Clery. While Dr Clery is of the view that the plaintiff might have mild pain in her neck due to a possible annular tear in the C5/6 disc. He found that her clinical presentation was such as to make him conclude that she was grossly exaggerating and that she suffers from little abnormality as a result of the motor vehicle accident - so much so that he was of the view that she was suffering from not more than a permanent impairment of her neck of 5% and likewise as far as her low back was concerned. 31 Dr J M Matheson, consultant neurosurgeon, also found clinical disparities between her complaints and tests. He was of the view that the CT scans were normal. Further that she had faked a straight leg raising test and that she had no abnormality from the accident and she was fit for work. That view was expressed on 3 December 1998. 32 Additionally, the defendant relied upon the fact that the plaintiff had been seen when a young girl by Dr G Kerridge, orthopaedic surgeon, in July 1990 when the plaintiff was thirteen years of age. She had seen Dr Kerridge as a result of a reference from Dr Balaz complaining of pain in her hip. As I would understand Dr Kerridge's report on that date he was of the view that pain was associated with normal growth. 33 It is plain from the reading of the reports of Drs Clery and Matheson that they are of the view that the plaintiff is in fact fabricating symptoms. In support of that position the defendant tendered in evidence, film taken of the plaintiff in January and June 1997, February 1998 and March, April, July, September and October 1999. 34 The film principally depicted the plaintiff walking, standing and driving her motor vehicle. At no time did the film show the plaintiff carrying out any extensive physical activity. 35 During cross-examination the plaintiff stated that while she avoided performing certain physical actions because of the onset of pain when performing those actions, there were times when it was not possible for her to avoid performing such movements when that occasioned she in fact performed them. 36 She did not deny that she was able to drive a motor car or can shop - activities depicted in the film. It should be noted that in one part of the film exposed the plaintiff was seen in company with her mother and the plaintiff's daughter. This, of course, was recently taken because, as I have said, the plaintiff's daughter was born on 30 June this year. The transportation of the plaintiff's daughter involved the use of a stroller. It was the plaintiff's mother who in fact positioned the stroller in the boot of the car being used. In my view the matter depicted in the film was not of assistance to the defendant's contention that the plaintiff was fabricating her symptoms. Indeed, to a certain extent the film was confirmatory of the plaintiff's statements as to her attitude towards performing certain physical actions. 37 Having weighed the evidence, I am of the view that the plaintiff has established, on a balance of probabilities, that she suffers the disability which she alleges. 38 I turn then to the consequences of that finding upon her employability and general disability. 39 At the time of the accident the plaintiff had been accepted as an apprentice by an organisation known as Hunter Group Training. That company employs apprentices and trainees and then leases such people to employers. The company commenced in 1980 with government assistance in order to facilitate the engagement of apprentices in the Hunter region. 40 The plaintiff had been contracted out by that company to Port Waratah Coal Service where she was to undertake a four year apprenticeship as an electrician. Not only was she engaged in the associated trade course with her work as an apprentice but she was also completing a diploma in electrical technology which, on its completion, would allow her to undertake professional work in the electrical engineering field as against a trade qualification. 41 She had completed her Higher School Certificate at the end of 1994 and had obtained a very good result but one below her actual capacity. I say this because in her last year at school she contracted glandular fever with consequent disruptive effect upon her ability to perform her school work. 42 In the light of my finding as to her disability as a consequence of the accident she has been unable to carry out her work as an apprentice electrician and accepting as I do the opinion of Drs Isaacs, Ghabrial and Hopcroft I find her permanently unfit to carry out the work in the electrical trade. 43 However, as I shall indicate later in these reasons I am of the view that the plaintiff's intellectual capacity is such that she is able to earn in non-manual fields, income. In other words while physically disabled from performing work involving manual and physical demands she is fit for sedentary work and has a capability for so doing. 44 The plaintiff, as I have said, married on 1 March 1997. She and her husband who had known each other since school days intended to defer commencing a family until after she had completed her trade and professional qualifications. Her husband, I might add, is also an electrician. He works as an automotive electrician with the State Transit Authority at Brookvale. It was only following the plaintiff's injury that a decision was made to commence a family at an earlier time. 45 The plaintiff's mother gave evidence of the assistance she affords her daughter in performing house work and caring for the plaintiff's infant daughter. That assistance occupies some ten hours per week. 46 Evidence was given by Mr Wallace from the Hunter Group in relation to not only the mode of employment of the plaintiff at the time of her injury but also as to future prospects. It was his view as a person who was well experienced in employment opportunities in the Hunter district that the plaintiff had excellent prospects. That view to a certain extent was in my view, confirmed by the evidence of Di Caldwell who is a specialist adviser in personnel at Port Waratah Coal Service. 47 Had the plaintiff successfully completed her trade and professional courses I am of the view that the probabilities are that she would have been able to obtain employment with either Port Waratah as an electrician or in some equivalent job with another employer. 48 I return to the matter I mentioned earlier in these reasons and that involves the plaintiff's capacity for work. Tendered in evidence was a report from Mr C Bass, a psychologist with considerable experience in assessing the capacity of people to engage in the work force. 49 He saw the plaintiff on 18 March 1999 at which time he not only interviewed her but carried out a series of tests designed to measure her intellectual potential and clerical aptitude. He found that her tests resulted in her falling, in terms of intellectual potential, within the superior and very superior ranges and that her test relating to clerical aptitude revealed that she was very fast and accurate when performing routine clerical tasks. 50 In the light of the view held as to her ability by persons such as Mr Wallace and her very good HSC results when, as I have noted her studies were interrupted by illness, comes as no surprise. 51 If the plaintiff had, as was anticipated, finished her apprenticeship at the end of this year she would, as of 1 January 2000 be capable of earning as an electrical trades person, working for Port Waratah, a net wage of $1,265 per week. 52 In the light of her intellectual capacity and I am of the view that her physical problems would not prevent her carrying out sedentary work, say as an electrical engineering associate, she would in my view be able to earn a higher than average income. 53 Doing the best I can I am of the view that the present differential between the plaintiff's ability to earn in her present state as against her state uninjured should be quantified in the sum of $250 per week. 54 As far as her future medical expenses are concerned, the plaintiff's counsel has submitted that a sum of $40,000 should be allowed including the cost of future surgery in the sum of $15,000. Her claim involves future visits to general practitioners and specialists, physiotherapy and hydrotherapy and pharmaceutical expenses. If the contemplated surgery were to be successful then the need for much of the treatment and need for examination would be obviated. It may be of course, that she will not undertake the proposed surgery. In the circumstances I am of the view that a reasonable allowance for future medical expenses is $20,000. 55 As far as home care is concerned I accept that since her date of marriage her mother has been assisting her for about ten hours per week on average. I therefore allow, using a rate of $15.28 per hour, which is agreed by the parties to be a reasonable rate, the sum of $21,239.20 for past assistance. 56 For the future a claim is made for 59 years into the future, taking her to the age of eighty-one which is her life expectancy. As I have said if she were to undergo surgery and the surgery was successful her need for ten hours assistance would no doubt dwindle or perhaps even disappear. Therefore it strikes me as being highly problematic that she will require assistance of the level claimed for the time claimed. It seems to me that this is not a matter which can be dealt with by way of a precise actuarial calculation. I believe a global approach should be taken to this claim and in my view an allowance of $50,000 is reasonable in the circumstances. 57 The plaintiff's past loss of earnings, mathematically, comes to $72,785.60. In light of my findings as to her physical disability from the date of the accident to the date of trial I would allow this amount in full. 58 Her loss of future earning capacity I have found to be quantifiable at $250 per week. Assuming that she would work for forty-three years, a multiplier of 703.8 is created by the actuarial 5% tables. Allowing 15% for vicissitudes a figure of $149,557.50 emerges under this head. 59 Having regard to the plaintiff's age, she having been born on 10 June 1977, her past disability and the problems she will suffer in the future, including her loss to take part in sport, I am of the view that I should award, pursuant to s 79A of the Motor Accidents Act, 50% of the most extreme case, which quantifies at $136,500. 60 I tabulate her loss as follows:

Out-of-pocket expenses 14,543.82 Past wage loss 72,785.60 Future wage loss 149,557.50 Non-economic loss 136,500.00 Future medical expenses 20,000.00 Past home assistance 21,239.20 Future home assistance 50,000.00 464,626.12 61 I thus assess the plaintiff's damages in the sum of $464,626.12. I will defer making an order for judgment until after the delivery of these reasons so that the parties can check the mathematics and I defer making an order for costs until after delivery of these reasons.

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