_Johansson v Hare & Anor_

Supreme Court of Queensland|2006-07-17|Before: Jones J

[1] On 4 December 2002 the plaintiff was injured in a collision between her car and a large truck at an intersection at Rockhampton in the State of Queensland. By these proceedings, she seeks an award of damages in respect of those injures. The second defendant has admitted its liability to pay those damages and the remaining task is to assess the quantum of allowances not yet agreed.

[2] The plaintiff was born on 18 June 1958 and was therefore 44 years of age at the time of the incident and is currently 48 years old. A period of 6.5 years have elapsed since the accident.

[3] Prior to the accident the plaintiff was in good health and led an active lifestyle. Until six months prior to the incident she had engaged in competitive basketball.

[4] The collision invoked significant force - sufficient to cause the passenger side of the vehicle to be crushed. The vehicle was "written off". The immediate effect of the collision was to cause the plaintiff to be shaken and upset. She attended her general practitioner, Dr Voloshinov, who sent her for x-rays and prescribed anti-inflammatory and analgesic medication. She experienced increasing pain in her lower back over the next few days and she returned to Dr Voloshinov on 6 December and 9 December 2002. He referred her to a physiotherapist and certified that she was incapacitated for work until mid-January 2003.

[5] The plaintiff at the time held the position of a salesperson with DMG Regional Radio network. It was a responsible position and despite the certificate she had, her manager asked her to return to work for a few days before Christmas 2002. She did this, notwithstanding she was still suffering headaches and pain in her neck and lower back. Her motivation for so doing was to preserve her chances of promotion which in fact subsequently did occur. She was initially promoted in February 2003 to the position of Sales Manager at Rockhampton and in April 2003 to the position of General Manager of the commercial radio station at Roma.

[6] Dr Voloshinov's prognosis was optimistic. He opined that she would make a full recovery. The plaintiff herself accepted this prognosis and continued to work with this increasing level of responsibility. In fact, this recovery did not occur and the plaintiff has continued to suffer from significant pain in her neck and lower back and with headaches. In her quantum statement[1] she describes her present condition in the following terms:-

"48. The neck pain, low back pain and headaches have not changed much since December 2002. If anything my neck pain and headaches are a little worse. I continue to suffer neck pain every day. The neck pain is always present but it varies in intensity. My main problem is that I suffer from headaches every day. I have not had one single day since the accident when I have not had a headache. I find the headaches very difficult to deal with. I suffer from low back pain every day however it does vary from a minor pain to a severe pain. When my low back pain is severe I need to lie down and rest."

These symptoms - in the broad sense - are consistent with the description of her problems given to the medical consultants.

[7] Whilst she was working in Roma the plaintiff commenced a relationship with her now husband, Kurt Johansson, whom she married in February 2004.

[8] At the time of this incident the plaintiff had a very clear focus on her career prospects. Her appointment as a radio station General Manager and her success in that role despite her disabilities, indicated that her capacity for work, had she not been injured, was quite high.

[9] I accept that it was the symptoms which the plaintiff experienced following the incident that resulted in her being unable to carry out her managerial duties at the radio station and which resulted in her resigning from her position on 9 June 2004 with effect on 10 September 2004.[2]

[10] The plaintiff had been examined by Dr Steadman, orthopaedic surgeon, on 12 January 2004. He had the opportunity to review the x-rays ordered by Dr Voloshinov in December 2002 and others taken on 8 April 2004. She was further examined by Dr White on 29 January 2004. Dr White saw the same x-rays and additionally the MRI scan taken on 5 July 2004. The plain x-rays show degenerative changes and narrowing at C4/5 and C5/6 disc spaces, some degenerative lipping in the mid-thoracic spine and changes at the L1S2 level and minor lipping in the other discs in the lumbar spine. The MRI scan of the lumbar spine demonstrates "desiccation, disc height loss and a central protrusion associated with an annular tear of the L5/S1 intervertebral disc".[3]

[11] Dr Steadman who was jointly retained by the parties did not have the benefit of the MRI scan. He recorded the plaintiff's complaints of pain and in his clinical examination noted that there was reduced range of movement in her cervical spine and no adverse signs in her lumbar area. He diagnosed that as a result of the injury the plaintiff has aggravated osteoarthritis of the cervical and thoracolumbar spines.

[12] Dr White at the time of his examination was aware from the MRI scan that the plaintiff had frank discogenic problems with the L5/S1 disc. He diagnosed that the injury to her lumbar spine "appears to have resulted in intradiscal disruption at L5/S1 in addition to aggravation of minor pre-existing degenerative changes". In cross-examination Dr White conceded that it is not possible so long after the event to say whether the annular tear was caused by the incident.[4] He assessed that condition as giving rise to an 8% whole person impairment as a consequence of the injury in which he appears to have included the annular tear. In relation to the cervical injury he expressed the opinion that as the symptoms from this area did not settle within six months post-injury that they were more likely not to give rise to a degree of permanent impairment. Of those with symptoms after two years virtually all have permanent pain and loss of function. He thought this may lie in the range of 5-18% whole person impairment. He did not review the plaintiff after the two year period but at the time of her attendance (approximately 18 months post-accident) he estimated her as having a 5% whole person impairment as a consequence of the injury. Because her symptoms have continued to this time I accept that they are likely to be permanent. The question unanswered is how much is due to injury and how much to pre-existing changes. Given this lack of improvement to date there is no reason to expect that Dr White's opinion as to the extent of impairment due to the incident would be less and may well be slightly more.

[13] The next assessments were by Dr Burke, occupational physician and Dr Toft, orthopaedist, both occurring on 13 September 2004, a few days after the plaintiff ceased work. The fact that the plaintiff had to submit to two examinations on the same day may go part of the way to explaining the circumstances which lead Dr Toft to express the view that the plaintiff's approach to his testing was "sub-optimal". Each of these consultants assessed the level of physical impairment in accordance with the A.M.A guidelines (5th Edition). Dr Burke came to the view that she would be regarded as suffering a 5% impairment in each of the cervicales and lumbar spines with half of the impairment due to pre-existing changes. Dr Toft by contrast opined that there was no physical impairment and that the symptoms of which the plaintiff complained would represent the "natural history of the pre-existing condition".[5] I do not accept this latter opinion, it being so far out of step with those of the other consultants. In any event, counsel for the defendant did not seek to rely upon the assessment other than as support for the opinions of Drs Steadman and Burke.[6]

[14] Dr Burke made little reference to the MRI results except as providing evidence of degenerative change whereas Dr White accepts that the intradiscal disruption as being caused by the incident. This view would explain the onset of low back symptoms and their persistence ever since. On balance I accept Dr White's opinion as to the extent of the lumbar injury.

[15] All medical consultants agreed that there was no surgery or treatment other than the alleviation of symptoms which would be available to the plaintiff to reduce the impact of her injuries.

[16] The drawing of conclusions from the medical evidence as to the extent of the plaintiff's disability that can be attributed to the incident, is made difficult because there can be no correlation between the plaintiff's symptoms and the demonstrated degenerative changes which so coloured the opinions of the orthopaedists. Each of them agreed that there was no direct correlation, though Dr Steadman spoke of a spectrum which allows for the fact that some people with significant neck and back pain, showing no degeneration at all, and others with significant degeneration having no symptoms of pain and limitation, but which identifies a "phenomena of expediential decay, so if you look at a 60 or 65 year old who has got severe degenerative change, you can almost guarantee the person's got some back pain".[7] But he agreed that there were no reliable studies on the proportional relationship between signs of degeneration and the onset of back symptoms. Dr White to similar effect, spoke of progressive deterioration being anticipated but that for someone in the plaintiff's position, it may not happen for 15-20 years. Without the injury resulting from the collision the onset was likely to be more gradual and thus less debilitating. In assessing the adverse impact of this injury, the acceleration of the onset of symptoms is in my view quite significant. The fact that degenerative signs in the lumbar spine were "very mild" and distal desiccation was not "widespread"[8] leads me to conclude that Dr White's assessment of the adverse impact of the injury is to be preferred.

[17] The plaintiff's evidence about her symptoms and the impact they have had on her life is well supported by members of her family and her former work colleagues. I accept her evidence as a truthful account of her suffering, of her attempts to keep working despite her symptoms and of her inability to continue in her then position. I accept that prior to the accident the plaintiff was in good health and engaged in an active lifestyle. As a result of the incident, I find that she has suffered from headaches and from pain in her neck and lower back of varying frequency and severity ever since. She describes experiencing headaches virtually on a daily basis but with fluctuating severity. The fact that she suffers occasionally with severe headaches is confirmed by the evidence of her co-workers, Mr Sands, Ms Bickers and Ms Brummel. These witnesses also noticed the plaintiff frequently being restricted in her movements and having to lie on the floor from time to time to alleviate her back symptoms.

[18] I accept that the plaintiff was ambitious to succeed in her career in commercial radio. Her recent employment background was as an accounts executive in a variety of positions - home building industry, advertising and radio. She was promoted to sales manager and thereafter to general manager of a radio station. She was successful in that latter role but only because of her preparedness to work with pain and for longer than expected hours. The evidence of Ms Bickers and Ms Brummel demonstrates the plaintiff's capacity and drive in this respect.

[19] I am satisfied that it was reasonable for the plaintiff to give up the position of general manager, its demands being beyond her capacity to deliver. She described making that decision as being "very, very hard" and that it "broke her heart to have to give it up".[9] I see this as indicating the severity of the impact of her injury upon her physical capacity. The plaintiff has not worked since ceasing as general manager in September 2004.

[20] The plaintiff's claim falls to be considered under the terms of Chapter 3 Part 3 of the Civil Liability Act 2003 (CLA) and the regulations thereunder. It is necessary therefore to classify the plaintiff's injury in accordance with the Injuries Scale Value (ISV) provided in Schedule 4 of the Regulations.

[21] It is common ground that the plaintiff had a pre-existing condition of degenerative changes in her cervical and lumbar spines. I find that these conditions were asymptomatic prior to the incident. Accepting Dr White's assessment the plaintiff has as a consequence of the injury, a 5% whole person impairment to the cervical spine and an 8% whole person impairment of the lumbar spine. The cervical injury thus falls within No. 88 in Schedule 4. With respect to the lumbar injury Mr Crow of Counsel contended for a classification within Item No. 92 whilst Mr Green of Counsel for the defendant argued for No. 93. The description of the injury provided by the medical practitioners does not accord with the comment provided for in Item No. 92. Whilst there is radiological evidence of a discal tear there is no disc prolapse and the plaintiff's injury does not satisfy the alternative criteria in Item 92.

[22] I find therefore that the lumbar injury is correctly identified as falling within Item 93. This gives the same ISV range as the cervical injury (Item 88). However for the reason that there is frank radiological evidence of the tear which on balance I attribute to the incident, I will proceed on the basis that the lumbar injury is the most disabling and should be seen as the "dominant injury". On its own I would have assessed that as warranting an ISV at the maximum level of 10. Because there are other injuries the most significant being the adverse impacts arising from the cervical spine and from headaches, Clause 4 of Schedule 3 applies. This clause relevantly provides that a court may make an assessment at a level higher than the maximum dominant ISV but not, obviously, so as to exceed 100. The constraint on this uplift is that it should rarely be more than 25% higher than the maximum dominant ISV though the court has the discretion to assess at a higher level. Clause 9 of Schedule 3 permits the court to have regard to other matters to the extent that they are relevant to a particular case. The range of such matters is limited only to their being relevant to the assessment of general damages. This would appear to be reinforced by the terms of Clause 10 providing that whole person impairment is not the only consideration affecting the assessment of an ISV.

[23] Among the other matters which appear to me to be relevant in the case is the fact that the plaintiff still suffers debilitating pain to a degree which as a matter of probability would not have been present but for the accident. Also the injury and aggravation of the pre-existing condition has cut short what for the plaintiff was a promising career. Whilst monetary compensation will be addressed later in these reasons there is also the personal loss of a sense of achievement and fulfilment which fall within the ambit of the amenities of life. The plaintiff was of an age when such achievement would be important as the culmination of a working life but also an age where there was little, or no, opportunity to achieve to the same degree in another calling. In short, her lifestyle and quality of life have changed dramatically.

[24] I have regard to cases involving assessments under these legislative provisions, they are few in number and have been conveniently discussed in the judgment of McGill DCJ in Carroll v Coomber and Suncorp Metway Insurance Limited[10]. I have had regard also to the later decision of Dutney J in Clement v Backo and Suncorp Metway Insurance Ltd[11], where the claimant was the same age as the plaintiff but had more serious injuries but not greatly different long term consequences. The award there of general damages in the sum of $26,000 is proportional to the amount I now assess. I was referred also to a decision of Cullinane J in Morrison v Allianz[12] which concerned a leg injury and more serious consequences for which an allowance of $32,000 was made.

[25] Taking into account the need to uplift because of the multiple injuries for which 25% would be appropriate but also taking into account the other matters to which I referred an uplift of 50% should be made. I therefore assess the ISV at 15 and this results in an assessment of general damages of $18,000. Interest should be allowed on one half of this sum at 2% for a period of 3.5 years which calculates to $630.

[26] I am satisfied that the plaintiff was forced to give up her work in her position as general manager as a consequence of the injuries she sustained in this incident. That does not mean however that she could not perform remunerative work of some kind. It would need to be work which was mainly sedentary with the opportunity to move around and not involving prolonged hours or workplace pressure. The assessment of her loss of earning capacity, both in the past and for the future, must reflect this residual capacity.

[27] For the past period after ceasing work in September 2004 the plaintiff needed time to recover from the aggravating effects that such work had on her injuries and notionally to find other employment. Thereafter her loss should take account of her residual capacity. Her remuneration as general manager was $1,024 per week net. The fact that she achieved some success in the position notwithstanding her disabilities, leads me to conclude that she would have continued in that position or at least an equivalent position into the future. I doubt that she would now have prospects of meeting the demands of a managerial role if it required long or irregular hours. I assess that she has a residual earning capacity of $400 per week commencing from March 2005. This then forms the basis of my allowance for economic loss. For the past period this results in a calculation as follows:-

10 September 2004 - 10 March 2005 26 weeks at $1,024 per week - $26,624.00

March 2005 - 30 June 2006 68 weeks at $600 per week - $40,800.00

[28] Interest should be allowed on this sum at the agreed rate of 2.615% for 3.5 years which calculates to $5,949.

[29] Loss of superannuation for the past period should be assessed at 9% of that total yielding a further allowance of $5,850.

[30] For the future the period of loss should be reduced to 7 years (multiplier 309.4) to take account of the risk to her future employability for reasons unrelated to the injury attributable to the incident and for her vulnerability otherwise because of the level of spinal degeneration. This assessment takes into account also any deduction for other contingencies. At a continuing loss of $600 per week, the allowance that I make is $185,640 which I would round off to $180,000. The allowance for lost superannuation benefit will be 9% of that which calls for an allowance of $16,200.

[31] There is ample evidence that the plaintiff's disability rendered her unable to carry out the complete range of domestic tasks which she performed prior to being injured. Her son, Kevin Rainbow, detailed the contributions he made from time to time and her husband did likewise from the time he commenced to co-habit with the plaintiff in August 2003. Their evidence of her limitations is consistent with the physical limitations observed by her work colleagues when attempting to carry out her employment tasks. An allowance of 3 hours assistance per week for the past period is reasonable in the circumstances at the agreed rate of $15 per hour for the period of 3.5 years the appropriate allowance is $8,190.00. In addition, the plaintiff has paid for domestic services in the sum of $830 resulting in the total allowance for past domestic services in the sum of $9,020.00.

[32] Interest should be allowed on this sum at 2.615% for 3.5 years, resulting in a further allowance of $825.50.

[33] For the future the amount of services to be provided has to take into account the likelihood that with the passage of time the impact of naturally increasing degenerative changes would overtake the impact of the aggravation caused by the incident. The period over which the allowance should be made should be 10 years (multiplier 413) and for this period I would allow three hours per week at the agreed rate of $16 per hour which suggests an appropriate allowance of $20,000.

[34] Other future expenses relate to the costs of medications, physiotherapy expenses and the like. The plaintiff seeks an allowance totally approximately $16,500 but the defendant contends there should be a global allowance in the sum of $5,000. the uncertainties surrounding precisely what the plaintiff's needs are and how those needs will be met makes a global assessment appropriate, in these circumstances I allow the sum of $10,000.

[35] The allowance for special damages has been agreed between the parties in the sum of $3,284.61. Interest should be allowed on $2,420 of this item for a period of 2 years which calculates to an amount of $126.50.

[36] In summary then I assess damages as follows:-

1. Judgment be entered for the plaintiff against the second defendant in the sum of $334,885.61.

2. I adjourn consideration of the question of costs, allowing the parties to make written submissions within 14 days from the date hereof.

[10] [2006] QDC 146 - general damages $22,800. These cases while having quite different features demonstrate the relatively narrow range within which general damages fall. Coop v Johnston [2005] QDC u79 - $19,600; Ballesteros v Chidlow [2005] QSC 280 - $9,800

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