Taylor v Anderson & Anor [2004] QSC 106

Supreme Court of Queensland|2004-04-30|Before: Jones J

McMahons National Lawyers for the First and Second Defendants.

[2] The incident involved the first defendant's vehicle running into the back of the plaintiff's vehicle as it was stationery at an intersection in Wilkinson Street, Cairns in the State of Queensland. The plaintiff had observed the approach of the other vehicle in her rear-vision mirror and had braced herself for the impact. The force of the collision was not high. The plaintiff's vehicle was moved only a matter of inches and the damage to both vehicles was minor. It is likely that the plaintiff had her brakes firmly applied. She herself was able to drive her vehicle from the scene.

[3] The plaintiff was in "a bit of shock" after the incident and was not immediately aware of any pain. Later in the evening she experienced pain in her neck and upper spine. That pain worsened over the next few days causing her to seek treatment from Dr Anderson, a general practitioner at the Cairns 24 Hour Clinic. Dr Anderson ordered X-rays and prescribed anti-inflammatory and analgesic tablets. He diagnosed the plaintiff as suffering a musculo-ligamentus injury. The prescribed treatments did not alleviate the pain and the plaintiff continued to consult the general practitioner. On 28 August 1999 she also saw Mr Falge, a chiropractor. The chiropractic treatments gave only temporary relief.

[4] The plaintiff was, at this time, working as a teacher of information technology at the North Queensland Institute of TAFE. The pain she was experiencing was in her neck at the base of her skull, across her shoulders which caused difficulty for her raising her right arm. She found this difficulty increased when she was using a computer for long periods or when having to write on a blackboard or whiteboard. She continued to seek treatment for these problems from her general practitioner and from two different physiotherapists. Though the pain was relieved by these therapies, the relief was only temporary and the pain remained constant while she was working. In addition, the plaintiff suffered from disturbed sleep.

[5] On 27 October 1999 the plaintiff completed an application for Workers' Compensation attributing the pain in her neck and shoulders to the non-ergonomic state of her computer workstation. (ex 16) In a later statement dated 28 January 2000 (ex 17) the plaintiff made the link between her condition in October and the subject incident.

[6] Throughout this period the plaintiff sought a variety of treatments including acupuncture, osteopathy and relaxation techniques. The most disturbing problem for her in the latter part of 1999 was the loss of movement in her right arm.

[7] The plaintiff's condition gradually improved over time. By April/May 2000 most of the physical restrictions she experienced in her right arm, such as when hanging out washing or when engaged in domestic cleaning, had abated but she still continued to suffer pain in her neck and shoulder. Those symptoms continue to the present time to varying degrees which depends upon the nature and level of her activities.

[8] The plaintiff continued to have difficulties at work with continuing pain and with fatigue. She ceased that occupation in November 2000 so as to have three months off work in order to settle these problems. The plaintiff underwent a pain management course and attended various workshops designed to assist persons suffering pain whilst doing part time work with CentaCare. Ultimately the plaintiff returned to fulltime work at TAFE in March 2002 but continued to experience pain in her neck, shoulder and right arm as well as fatigue and impaired sleep. She ceased work because of these problems in September 2002.

[9] The present state of the plaintiff's condition is that she continues to suffer from dull neck pain of varying intensity. Certain activities or particular sudden movement can exacerbate the pain. She was asked (at T 13/55) -

"And has there been continual improvement up to the present time, that is, are you still improving? - Yes, I'm still improving. When I returned to work however, after having some time off I found that the symptoms came back and so the pain in my neck and shoulder were again quite severe because I had left and then I had returned. So since stopping work the second time my condition has improved."

[10] Certain household chores such as sweeping, mopping, vacuuming and heavy cleaning also exacerbate the pain. The plaintiff manages this by doing different tasks on different days. Prolonged use of a keyboard will also cause an increase in pain.

[11] The plaintiff's condition has resulted in her reducing physical activities such as camping and a variety of sporting pursuits. It has lessened her enjoyment of the time spent with her son who is now 10 years old. The plaintiff has, for a number of years, practised yoga. She continues to do so but in a milder form. She also teaches yoga, although this does not result in any significant financial reward.

[12] The plaintiff had some pre-incident health problems which were explored during her cross-examination. In 1984 she was a passenger in a motor vehicle which overturned in an accident in the Northern Territory. As a result the plaintiff suffered from headaches for two days. The only available medical assistance was from a nurse who saw the plaintiff on one occasion. The plaintiff described to Mr Falge (ex 15) some ongoing problems dating back to this event. This appears to have been a reference to her experiencing some "discomfort in the area between [her] shoulder blades and the lower part of her neck".[1] That pain was different to the pain now complained of since the subject incident.

[13] X-rays taken in 1999 showed degenerative changes in the discs between C4-7 which some medical practitioners have associated with earlier trauma, perhaps the 1984 incident.

[14] There was a prior complaint about pain between the shoulder blades but this is more likely related to her work tasks and was probably "posture related" as suggested by Dr Cook.[2]

[15] The plaintiff also described neck tension problems prior to the incident as well as some emotional upset. This appears to have stemmed from an unhappy breakdown in her marriage which resulted in she and her husband separating in October 1997.[3] The plaintiff was also dealing with the emotional impact of childhood abuse which necessitated some counselling sessions in late 2000. These emotional setbacks no doubt had some impact on the plaintiff's capacity to deal with the symptoms arising from this incident. However, in my opinion, the relationship between the cause of the symptoms and the incident is clearly established.

[16] Dr Thomas was the first of four orthopaedic surgeons to examine the plaintiff. He saw her on 18 February 2000 to determine whether her work situation was the cause of her symptoms. The history he elicited is consistent with the evidence given by the plaintiff. He also reviewed X-rays which had been taken earlier and he expressed the following opinion:-

"I do not think one can deny that this lady's complaints are fairly genuine. She has moderately severe degenerative changes in the cervical spine which would no doubt be causing her neck problems. However, it would appear that the onset of these complaints relate in the main to the motor vehicle accident experienced in mid August of last year. I do not think that the clerical activities that she is performing in her profession could be regarded as a significant contributing factor at this point in time.

It is also noted that she is having problems with her right shoulder which I think are due to some degenerative changes involving the rotator cuff mechanism. I think these could be kept under control by some simple conservative treatment measures. Again, it is difficult to feel that the onset of this problem relates significantly to her present type of employment."[4]

[17] Dr Curtis examined the plaintiff in February 2001. He diagnosed the plaintiff as having suffered "a whip-lash injury involving ligaments and muscular attachments in her cervical spine and a rotator cuff injury to her right shoulder".[5] He ascribes 5% loss of the whole person to the neck injury and 8-10% to the shoulder injury.

[18] Dr Cook examined the plaintiff on 23 April 2003. He found moderate loss of movement in her neck and pain associated with movement. He found some wasting of muscles and tenderness in the right shoulder. Ultrasound examination disclosed a full thickness tear of the supraspinatus tendon to the rotator cuff. X-rays confirmed the existence of significant longstanding degeneration in the cervical discs. Dr Cook diagnosed the injuries sustained in the incident as "a musculo-ligamentus injury to the cervical spine...as well as aggravation of pre-existing degenerative changes...also resulting in some irritation of the nerve roots in the right upper limb".[6] He assessed the loss arising from the incident at 5% of the whole person.

[19] Dr Bruce Martin examined the plaintiff on 2 December 2002. He attributed all the plaintiff's symptoms to the pre-existing degenerative change and to the tear in the supra-spinatis tendon. He opined there was no aggravation of any pre-existing condition. This opinion is out of line with the opinions expressed by each of the other orthopaedic surgeons. Dr Martin in cross-examination did concede that she may have got symptoms from the accident superimposed upon her degenerative change but that this did not impact on the level of impairment.[7]

[20] Reports from Dr Guazzo, neuro-surgeon, (ex 10) do not add to the description of the plaintiff's condition as provided by the orthopaedists.

[21] Dr Curtis raised the possibility that the incident "set off some form of injury at that stage and then later developed a complete tear which was confirmed on ultrasonography".[8] Dr Cook considered that such an injury was more likely to be caused from a side impact rather than one from the rear and declined to relate the injury to the incident. Both specialists however agree that the tear was unlikely to have occurred spontaneously given the plaintiff's age. Dr Martin expressed the view that rotator cuff tear is usually the result of indirect trauma rather than direct impact upon the shoulder and that having an arm in a braced position might provide indirect force.[9]

[22] In the circumstances where the plaintiff had forewarning of the collision, it is likely she would have braced herself for the impact. The precise nature of the forces on her shoulder could not possibly be established. Nor, it seems can the precise time of the onset of shoulder symptoms be determined. Dr Gale records their onset as some two weeks after the incident and Dr Cook as prior to her seeing a chiropractor (which occurred at approximately two weeks). The plaintiff was not directly questioned on this point and in any event would probably not be able to distinguish between pain referred from her neck and pain arising from any shoulder injury. However, accepting as I do that the plaintiff was free of shoulder symptoms before the incident and relatively soon afterwards suffered significant symptoms there it seems to me there was a causal connection whether it be as an initiating injury or by the aggravation of a existing but incipient condition.

[23] I accept the opinions of Dr Curtis and Dr Cook which identify the scope of the injury to the plaintiff's neck. I am satisfied that as a result of the collision the plaintiff suffered a musculo-ligamentus injury to the cervical spine and an aggravation of pre-existing changes in that area. I find that the degenerative conditions were symptomatically silent prior to this incident but as a result of it have become symptomatic. I am satisfied also that the incident either caused or substantially aggravated an injury to her shoulder as envisaged by Dr Curtis.

[24] The plaintiff continues to suffer from the effects of this incident and will do so for some time into the future. I accept that it was likely that the condition in her neck would have become symptomatic at some indefinite future time. The need for surgery to the plaintiff's shoulder described by Drs Curtis and Cook, I find to be a consequence of the injury to/aggravation of the plaintiff's right shoulder.

[25] I assess general damages at $40,000. Interest is allowed on $20,000 of that sum at 2% for 4.5 years which computes to an allowance of $1,800.

[26] At the time of the incident the plaintiff was in part-time employment for working either 18 or 24 hours per week. She had sought an additional four hours per week and this request was granted some time after the incident. She was at the same time caring for her son, so one sees advantages for her in working for TAFE where holidays are aligned to those of the school system.

[27] The plaintiff holds the degree of Bachelor of Information Technology from Griffith University. She worked initially in the public sector for CITEC and later worked at the Workers' Compensation Board. Thereafter she worked in computing fields for private employment and later ran her own consulting business. However since 1995 she worked for TAFE and planned to continue with that employer until the year 2000. She expressed a desire to return to employment in private industry in the field of systems analysis. Some evidence was given about the earnings paid in this type of work and the availability of such a position.

[28] I am not convinced that the plaintiff would necessarily have succeeded in gaining employment in this field at the time she proposed. Although her husband shared the caring duties of her son, the primary obligation remained with the plaintiff. She still appeared to be unsettled emotionally and as well any work involving long hours might have been short-lived if her degenerative condition became symptomatic. Her position in the TAFE sector allowed her more flexibility with hours and holidays. Looking at her working capacity over the long term I expect she was more likely to have remained in the public sector or to return to it for reasons of security and flexibility.

[29] I am satisfied that her tolerance for work has been reduced as a consequence of the injuries. Essentially, she has lost the capacity for fulltime work but is able to work on a part-time basis. This finding is consistent with the opinion of Ms Nicholls expressed in her report (ex 3). For the pre-trial period economic loss arises because of the diminution in her earnings between March 2001 and March 2002 and for the loss of earnings between September 2002 and February 2004. This is a total of approximately 125 weeks. For the latter period I am not satisfied that the plaintiff was totally incapacitated for all work. Rather I take the view that could have performed some part-time work beyond yoga teaching had she chosen to do so. This is consistent with the view expressed by Dr Cook following his examination in April 2003.[10] The taxation records (ex 8) demonstrate the plaintiff's earning capacity of approximately $500 per week when she was working for TAFE. I will use this as the basis indicating her normal capacity to earn although I am conscious that had she gained more hours whilst working for TAFE this figure would have increased and also that it does not take into account higher earning opportunities in the private sector.

[30] For the past period of 125 weeks I assess the reduction in earning capacity at an average of $250 per week, the allowance therefore calculates to $31,250. On the assumption that the plaintiff would have received social security benefits during this period of at least an equivalent amount I do not propose to allow interest on that sum. I will however, allow loss of superannuation benefit at 8% which computes to a sum of $2,500.

[31] In considering the future loss of earning capacity I anticipate that the plaintiff will undergo the surgery which is likely to increase her work tolerance. I would allow for the future period the sum of $200 per week loss of earning capacity for a period of 10 years by which time the plaintiff's capacity would probably be reduced by the effects of the symptoms of her degenerative condition. In arriving at this period of loss I take into account the fact that there would have been a short period of total incapacity by reason of the proposed surgery. The allowance of $200 per week for 10 years (413) calculates to $82,600 which should be rounded upwards to take account of the plaintiff's loss to succeed in earning much higher income in the private sector. I allow the sum of $85,000 for loss of future earning capacity.

[32] Loss of superannuation for the future should be at 9% of the above sum which calls for an allowance of $7,650.

[33] For future medical expenses I allow the cost of surgery at $6,000 based on the figures submitted by Dr Curtis which are now somewhat dated. To this sum I should add some allowance for other treatment and medication. In total, the allowance for these combined future expenses will be $9,000.

[34] The allowance sought for past care is $1,300 and that amount is not seriously challenged by the defendant, interest is allowed on that sum at 2% for 4 years adding a further component of $104.

[35] A claim is made for future care to cover the cost of assistance in the heavy classes of domestic cleaning in respect of which I refer particularly to the assessment of Ms Nicholls in her report (ex 4). I allow the sum of $2500 on this account.

[36] Special damages are calculated in the sum of $6,726.65 and that sum is not challenged by the defendant.

[37] In summary then I make the following allowances:-

[38] 1. I give judgment for the plaintiff in the sum of $187,830.65.

2. I adjourn the consideration of the question of costs to allow parties to make written submissions on that issue within the next 14 days.

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