Pitt v Campbell

Plaintiff's Medical Evidence

1. The plaintiff claimed injuries to her neck, lumbar spine and left shoulder. She also claimed a psychological injury.
2. The plaintiff's family GP Dr Raju provided a report dated 15 October 2017. His diagnosis was that there were multiple disc lesions in the cervical and lumbar spines and a condition which he described as post-traumatic syndrome. I reject the opinion of Dr Raju contained in that report. It is at odds with most of the specialist medical opinion, and in any event, there are no reasons advanced for the conclusions expressed in his report.
3. The chiropractor Mr Massey provided a report dated 6 March 2017. The plaintiff complained to him of neck pain, mid to upper thoracic pain and lower back pain. She also complained of headaches on a daily basis. On examination he found a decreased range of movement in the cervical spine. He noted spasm in the upper cervical, upper thoracic and right lumbar spine. His provisional diagnosis was ligamentous and muscular strain due to whiplash. He administered chiropractic treatment to the plaintiff. The plaintiff did not like having this treatment and indicated in her answers that she did not perceive any benefit from the treatment.
4. There was a very short report from the physiotherapist dated 14 June 2017. The examination of the physiotherapist showed that lumbar extension was significantly reduced, and lumbar flexion was limited with pain experienced with all movement, especially at end of range. Lumbar mobilisations were painful.
5. The physiotherapist said that because the plaintiff was a school student and had to sit in classrooms most of the day, pain in her lower back would flare up from time to time due to posture.
6. The plaintiff obtained two expert reports from Dr Guirgis, orthopaedic surgeon. In his first report dated 22 November 2016 the diagnosis was "post-traumatic mechanical derangement of the cervical, thoracic and lumbar areas of the spine". Dr Guirgis did note that the complaints were of neck pain and stiffness with radiation to the left shoulder and the top of the left shoulder blade, mid-back pain and stiffness with radiation to the left side of the chest wall and to the left shoulder blade area, and lower back pain and stiffness. In that first report Dr Guirgis thought that the plaintiff required conservative treatment being home-based exercises, swimming and posture correction.
7. In his second report, dated 15 February 2017, Dr Guirgis said that on examination there was muscle guarding and tenderness in the cervical spine. He found tenderness in the left shoulder, the thoracic spine and the lumbar spine. He found restriction of movement in the lumbar spine. Again, Dr Guirgis offered the opinion that the plaintiff had suffered from post-traumatic mechanical derangement of the three areas of the spine. He thought that the left shoulder problems were caused by the accident.
8. Dr Guirgis was not asked to offer an opinion upon whether there would be any effect of the injuries upon the plaintiff's future earning capacity. The second report of Dr Guirgis was about two years old at the date of trial. Given the plaintiff's own evidence that her condition had improved somewhat over time, his reports were not of great assistance.
9. The plaintiff also tendered a medico-legal report from Dr Endrey-Walder dated 1 February 2016. This report was also effectively out of date by the time of the hearing. His opinion was that the plaintiff had suffered soft tissue injuries in the motor vehicle accident. The plaintiff complained to that doctor of recurrent headaches and lower back pain which had persisted. He thought that she needed physical rehabilitation in the form of 8-10 hydrotherapy lessons, after which she could start her own water-based exercises, preferably swimming once or twice a week. Dr Endrey-Walder thought that the plaintiff was fit to continue her schooling and it was his understanding that she had resumed attending PE classes. He too was not asked about the effect of the injuries upon the plaintiff's future earning capacity.
10. The plaintiff tendered a medico-legal report from Dr Lee, a psychiatrist, dated 9 January 2018. The plaintiff told Dr Lee that her main complaint was back pain which prevented her from playing sports. She said that this inability makes her feel very annoyed and frustrated. Dr Lee said: "Her father believes that pent-up anger has caused her to overreact to the smallest things, like when she is refused permission to go places and attitude problems towards her family whereby she will not listen and becomes rude and demanding".
11. The plaintiff is a 15 year old girl. She has been living in a difficult family situation ever since the accident. Dr Lee did not have the complete picture, including school records, which Dr Adler (the defendant's medico-legal psychiatrist) had. I deal with Dr Adler later in this judgment, but I prefer the opinion of Dr Adler to that of Dr Lee, as Dr Adler had the full story. Dr Lee did say that any adjustment disorder had not affected the plaintiff's ability to study or her future earning capacity.
12. Apart from some radiological material, and some very short clinical notes from the GP, that was the extent of the plaintiff's evidence. The plaintiff bears the onus of proving that there will be an effect of these injuries upon her future earning capacity. No direct opinion on this topic was offered on behalf of the plaintiff.

Defendant's Medical Evidence

1. The defendant tendered a certificate issued under Part 3.4 of the Act from Dr Robin Fitzsimons, who certified that the plaintiff had suffered injuries to the cervical spine (soft tissue), the lumbar spine (soft tissue), and the left shoulder (due to soft tissue injury or referred neck pain) but that the injuries caused by the motor accident gave rise to a permanent impairment which was not greater than 10%. It was this certificate which shut the plaintiff out from any damages for non-economic loss.
2. Dr Fitzsimons expressed some doubt about causation of any injury to the left shoulder. However, it appears that he was not given the note made by Dr Wu, the GP who saw the plaintiff the day after the accident. Dr Wu was told of a complaint of left shoulder pain. In any event, Dr Fitzsimons certified that the plaintiff had suffered permanent impairment to the cervical spine, lumbar spine and left shoulder.
3. Certificates under Part 3.4 of the Act from Dr Jager and Dr Bye were tendered by the defendant. Both doctors certified that there was no need for domestic assistance as a result of any injuries caused in the motor accident. I will return to the legal effect of those certificates below.
4. Dr Bye, who was assessing the orthopaedic problems, came to the view that "her physical symptoms have progressed satisfactorily with inconsistent ache in the lower back and no physical signs at the time of my assessment".
5. The defendant also tendered three reports from Professor Ryan, a clinical Associate Professor of orthopaedic and spinal surgery. In his first report, dated 21 February 2017, Professor Ryan accepted the plaintiff's complaints of lower back symptoms but thought that she would improve with appropriate advice and improved trunk and abdominal fitness. He concluded that the accident was the cause for the plaintiff's lower back pain.
6. The second report from Professor Ryan was dated 19 June 2017. He found muscle spasm and guarding in the lumbar spine upon examination. He thought it was "worrying" that her symptoms had persisted nearly four years after the injury. He offered no view about any effect upon potential earning capacity. Professor Ryan thought that the plaintiff required "pain management".
7. The third report from Professor Ryan was dated 17 October 2018, arising from an examination on 4 October 2018. He found mild guarding in the lumbar spine on examination, and recorded that straight leg raising produced "minor spinal discomfort". His conclusion was: "Miss Pitt has little in the way of disability now. She has progressed well at school. My only misgiving is that she has not returned to a regular sporting activity which would improve her fitness especially her lumbar spine. She is keen to play soccer at school level. This is my recommended treatment. Apart from this she does not require medical, hospital or medication treatment. She does not require physiotherapy or occupational therapy. She does not need rehabilitation."
8. The plaintiff also tendered two medico-legal reports from Dr Apler, a psychiatrist. Those two reports went in without any limiting order under the Evidence Act 1995 (NSW), and are thus evidence of the history given to Dr Apler by the plaintiff and her father who attended the consultations. Dr Apler interviewed the plaintiff's father and stepmother separately. He also made reference to school reports.
9. Dr Apler thought that there was no psychiatric disorder in the period preceding the car accident. He also thought that there was no psychological or psychiatric impairment as a result of the car accident.
10. The second report of Dr Adler, dated 10 December 2018, commenced with a summary of a confrontation between Dr Apler and the plaintiff's father, prior to the medico-legal examination. Dr Apler set out a detailed history given to him by the plaintiff, which is recorded at pp 101-105 of Exhibit DX1. There was no evidence to call into question the accuracy of that history, as recorded by Dr Apler. I will not recite it in this judgment, but I rely upon it in its entirety.
11. The opinion of Dr Adler is set out at pp 109-111 of Exhibit DX1. Because it contains much personal information regarding the plaintiff's childhood and her family circumstances, I will not recite that material in this judgment. I accept the opinion of Dr Adler and I rely upon it, in its entirety. His final opinion was that the motor accident did not cause a psychiatric disorder. He saw no need for further psychological or psychiatric treatment for any problem arising from the accident.

Evidence given by the Plaintiff

1. At the commencement of this judgment I have recorded my favourable impression of the plaintiff as an accurate witness. The plaintiff said that after the car accident she suffered from pain in her lumbar spine, neck and left shoulder. She was suffering from a headache. She had played sport at school before the accident, but when she went back to sport after the accident she often had to sit out because of a sore back and shoulder. In class the plaintiff often had to stand up or stretch as her back used to hurt if she sat for a long time.
2. When high school commenced in 2014, the plaintiff participated in sports but often had to ask to sit out because she was suffering from a bad back. In class her neck and her back sometimes hurt and she had to stand up and move around a bit. She kept up with her folk dancing but could not properly participate. Her role at the annual concert was downgraded. She stopped dancing in about 2016 or 2017. She found that it made her back painful.
3. The plaintiff resumed folk dancing in 2018 but found that her neck, back and shoulder got worse so she quit again. She has not gone back. She thought that her neck, back and shoulder improved after she stopped the dancing.
4. So far as medication is concerned the plaintiff occasionally takes two Panadol. She has participated as much as she can in sport at school, and hopes to enrol in the next soccer season.
5. The plaintiff gave evidence of performing work experience at a local vet at the end of 2018. She was asked to help with physical tasks including re-stocking and lifting cartons up onto shelves. Her shoulder and her lower back hurt, and her father had to ask the vet for her to be relieved of those duties.
6. The plaintiff gave evidence that, while she was in Year 11, she really had not thought about a future career. At various times she had expressed a desire to be a vet, or an architect, or a plastic surgeon. I pause to remark that having read the school reports, the plaintiff would best be described as an average student, who was improving her marks as she matures. I find that it is unlikely that she will obtain a sufficient pass in the Higher School Certificate to progress into any of those careers.
7. In cross-examination the plaintiff agreed that her headaches had improved a lot. She acknowledged that she had difficulties in school in 2015 and 2016, and that her schooling was now going better. She intends to enrol in soccer and is feeling better now than she had felt a few years ago. She only went to her GP twice in 2018. She took two Panadol once a week or once a fortnight. She had some exercises for her lower back, which she did about once every week.

Findings of Fact

1. I accept the plaintiff as a witness of truth. She has support for her complaints from Dr Fitzsimons and Professor Ryan.
2. Since I am not assessing non-economic loss, but only assessing the effect of the injuries upon future economic loss, I will confine my findings of fact to the plaintiff's present situation.
3. I make the following findings of fact: 1. The plaintiff suffers from minor and intermittent lower back stiffness and pain, brought on when she participates in heavier activities. 2. Such activities include school sport and her recent work experience where she had to lift boxes and stack shelves. 3. The plaintiff suffers from intermittent pain and stiffness in the neck, but to a lesser degree than the problems in her back. 4. The plaintiff continues to suffer from intermittent problems in the left shoulder. While she has full range of movement, the shoulder can become sore if she uses it for heavier tasks. 5. The plaintiff suffers from no psychological or psychiatric problem which can be attributed to the accident or to the injuries suffered in the accident. 6. The plaintiff is an average school student who is applying herself as best she can. 7. The plaintiff is not academically suited to entry into professions such as medicine, veterinary science or architecture. 8. The plaintiff will probably achieve entry into tertiary education in other fields. 9. The prospects of improvement of the plaintiff's physical condition are good and conservative treatment, involving some form of exercise, would benefit her.
4. I turn to deal with the various heads of damage.

Past Out-of-Pocket Expenses

1. The parties agreed upon a figure of $4,498.05 for past out-of-pocket expenses, of which $3,766.20 has been paid by the insurer. There were three additional items of past out-of-pocket expenses in dispute being: 1. Radiology dated 18 December 2017 - $2,100 2. Chiropractic treatment in 2017 - $225 3. Physiotherapy treatment in 2017 - $583.
2. As I indicated during submissions, if a child is sent to treatment which is not contraindicated, particularly when that treatment is recommended by a doctor (i.e. the radiology), then the tortfeasor should pay for those expenses.
3. The evidence in the case shows that the insurer thought that by 2017 the plaintiff was not suffering from pains and problems, but I have found to the contrary. The plaintiff is entitled to those three amounts. They total $2,908.
4. There will therefore be an award for $4,498.05 + $2,908 = $7,406.05. The defendant will have credit for $3,766.20 already paid, pursuant to s 83(5) of the Act. There will therefore be a nett award for past out-of-pocket expenses of $3,639.85. Of this amount, $181.85 was paid by Medicare and the balance of $3,458 was paid or is payable by the plaintiff's father.

Future Out-of-Pocket Expenses

1. I have indicated above that I accept the opinion of Professor Ryan that the plaintiff would benefit from exercise. At age 15, I do not think that the plaintiff can be expected to absorb and follow an exercise program given to her, and it would be beneficial to her if she could have some sort of structured program, where a practitioner followed her up to see that she was doing exercises properly and regularly.
2. There is no evidence that enables me to calculate a precise figure for such a programme. Doing the best I can, I allow a figure of $2,500, for the plaintiff to have training and supervision for a course of suitable strengthening exercises. I also allow a figure of $500 for pain medication and very occasional treatment in the nature of physiotherapy or chiropractic. There will be a total award for future out-of-pocket expenses of $3,000.

Future Loss of Earning Capacity

1. Any award for future economic loss is governed by s 126 of the Act which provides: "(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
2. It is notoriously difficult in the case of a child to make these findings. The court has to do the best that it can to provide compensation which is adequate to the plaintiff and fair to the defendant, based on the limited evidence available - State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536.
3. Numerous authorities in the Court of Appeal permit the court to assess damages for future loss of earning capacity by a lump sum cushion or buffer. That is the approach urged by counsel for the plaintiff, who submitted that the figure awarded should be $200,000.
4. On the factual findings I have made, the most likely future circumstances but for the accident were that the plaintiff would engage in tertiary study and then enter the workforce. She has two years of high school to go, plus three or four years of tertiary study, so any exercise of earning capacity is five to six years away.
5. On the findings of fact I have made, she has present physical disabilities, which hopefully will be improved by exercise and strengthening. However, there is no guarantee of success. There is a possibility that the plaintiff will continue to suffer, during her earning years, from the minor physical limitations which she presently has.
6. With tertiary education, and with a particular interest at the moment in the school subject Design and Technology, she may well be employed in a job which has no physical requirements. However, there are a large number of jobs which have some physical component, even for those who have tertiary qualifications.
7. Doing the best I can, I propose to award a buffer or cushion of $15,000 to reflect future loss of earning capacity.
8. Even if the plaintiff has a complete recovery before she enters the full-time workforce, there will still be a restriction in earning capacity in coming years. It is not unknown for students pursuing tertiary study to obtain a part-time or weekend job, most of which have a significant physical component. During her recovery the plaintiff would have difficulty doing some of those jobs.

Claim for Care

1. I find that this claim fails on a legal basis and on a factual basis. I accept the submissions put by counsel for the defendant that the effect of the certificates of Dr Jager and Dr Bye is that this court cannot award damages for the care claim - Allianz Australia Insurance Limited v Girgis [2011] NSWSC 1424; Insurance Australia Limited v Scott [2016] NSWCA 138. Part 3.4 of the Act deals with medical assessment. The Part applies to a disagreement between a claimant and an insurer about, inter alia, 1. whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances; and 2. whether any such treatment relates to the injury caused by the motor accident.
2. These two topics fall within the defined phrase "medical assessment matters". Such disputes are referred for assessment under Part 3.4. The word "treatment" is defined in s 42 of the Act to include "attendant care services", a phrase itself defined in s 3 to mean: "services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services".
3. By s 61(2) of the Act, any certificate as to a medical assessment matter is conclusive evidence as to the matters certified in the court proceedings in respect of the claim concerned.
4. Counsel for the plaintiff reluctantly acknowledged that the certificates of Dr Jager and Dr Bye had the effect of foreclosing the claim for care. He did submit that the court could consider exercising its power under s 62(1)(b) of the Act to refer the matter again for assessment under Part 3.4. However, such power can only be exercised on the grounds of deterioration of the injury or additional relevant information about the injury which has a material effect on the outcome of the previous assessment - s 62(1A). There was no such evidence and no submission that there was. I decline the invitation to refer the issue of care for further assessment.
5. I find that as a matter of law the plaintiff is precluded from obtaining any damages for care or domestic assistance. I also find that, even if I am wrong about that matter of law, such a claim would fail on the facts. The evidence was that the domestic assistance presently being provided to the plaintiff and her father was provided by the father's mother and his sister. This is gratuitous care. There is a threshold in s 141B(3) the Act of six hours and six months which has to be satisfied, and on the evidence this threshold was not satisfied. The claim for care was pitched on a commercial basis. Commercial care is not subject to the dual threshold in the Act. However, I think it most unlikely that any care, even if needed, would be provided commercially by an outside person. This is a close family and the evidence thus far is that care and assistance is provided gratuitously by family members. If such care continues, it will continue to be provided by the family on a gratuitous basis.
6. There was no evidence tendered for the plaintiff from any expert to say that the plaintiff required care or assistance, or if she did, what the level of that care should be. The medical specialists said nothing on that topic and there was no report from an occupational therapist or a rehabilitation physician, who would be able to say something if asked. That is another reason why the claim fails.
7. I find that the plaintiff is not entitled to any damages for care or domestic assistance.

Orders

1. The plaintiff is entitled to a judgment for $21,639.85 made up of $3,639.85 for past out-of-pocket expenses, $3,000 for future out-of-pocket expenses, and $15,000 for diminution of future earning capacity.
2. My orders are: 1. Judgment for the plaintiff against the defendant for $21,639.85. 2. Order pursuant to s 77(2) of the Civil Procedure Act 2005 that the judgment sum be paid into court. 3. Order pursuant to s 77(4) of the Civil Procedure Act 2005 that the sum of $3,639.85 be paid out to the plaintiff's solicitors on their undertaking to pay any unpaid out-of-pocket expenses and reimburse the plaintiff's father for past out-of-pocket expenses paid by him. 4. Order pursuant to s 77(4) of the Civil Procedure Act 2005 that the balance of the monies in court of $18,000 be paid out to the NSW Trustee & Guardian for management until the plaintiff turns 18. 5. Order the defendant to pay the plaintiff's costs. 6. Liberty to approach my Associate within 7 days if either party seeks a different costs order.

Amendments 20 February 2019 - Amended to correct an error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2019