Di Mauro v Smith & Suncorp Metway Insurance Ltd [2007] QSC 244

1 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION JONES J Claim No 144 of 2003 ROSALINA DI MAURO Plaintiff and DONALD JAMES SMITH First Defendant and SUNCORP METWAY INSURANCE LIMITED (ACN 075 695 966) Second Defendant CAIRNS ..DATE 23/04/2007 JUDGMENT -- 1 of 15 -- HIS HONOUR: The plaintiff was injured in a motor vehicle incident on 27 July 1999 at Cairns in the State of Queensland. The plaintiff was born on 24 March 1969 and was thus 29 years old at the time of the incident. She is now 37 years old. By this action she seeks damages for her injuries. The defendants have admitted liability for those damages which now fall to be assessed. Immediately before the incident the plaintiff was in good health and working in a satisfying position with the Hinchinbrook Shire Council. She was married and had one child, Matthew, born in 1977. On 1 July 1999, some four weeks before the accident, the plaintiff had reduced her working hours to three days per week (21.6 hours) to assist in her quest to conceive a second child. It was her intention, however, to return to full-time work when convenient after the birth of the second child. She expected this would occur approximately six months after the birth. The second child, Kiara, was born on the 10 August 2000 but the plaintiff did not return to work until 2 July 2001, and then only on a part-time basis. At the time of the incident the plaintiff was a back seat passenger in a vehicle which was struck from behind by a large utility vehicle. She suffered soft tissue injuries to her cervical spine and a left shoulder injury. She suffered pain and headaches which she treated herself with pain-relieving tablets. When the pain did not settle, she consulted her general practitioner, Dr Dowd, some two weeks later on 9 2 JUDGMENT -- 2 of 15 -- August 1999. He diagnosed her injury as a "whiplash injury" and prescribed analgesics and massage. The plaintiff has since been seen by two orthopaedic specialists, Dr Maguire and Dr John Fraser, a clinical anatomist Dr Giles, an occupational physician Dr Adams, and two occupational therapists, Ms Purse and Mr Morgan. On 5 September 2003 Dr Maguire diagnosed her injuries as: "1. Soft tissue injury: Cervical spine, with ongoing neck pain, associated muscle spasm and headaches. There is asymmetrical range of motion. 2. Left shoulder: There is a positive impingement with the rotator cuff dysfunction and weakness of abduction and external rotation." I will say her symptoms are consistent with that diagnosis. He was of the view that the plaintiff would not be able to manage full-time work. He saw the plaintiff again in February 2006. His assessment of her disability had increased to 13 per cent of whole person impairment. He described her prognosis as being "poor" and he suggested: "She has ongoing problems and I believe requires intervention particularly in relation to the shoulders. She should undergo further consultant review. A subacromial injection may require surgical intervention. This would cost in the order of $7,000 to $10,000. She should also undergo physiotherapy and massage therapy for both neck and shoulder regions. She would also benefit from home help." 3 JUDGMENT -- 3 of 15 -- Dr Fraser examined the plaintiff on 14 January 2003. On his physical examination he found "a full active range of movement in the cervical spine", a full range of movement in the shoulder. He assessed no permanent impairment. There were obvious changes in the cervical spine detected on MRI. Dr Fraser interpreted these as pre-existing degenerative changes. His second examination of the plaintiff on 17 November 2006, again his physical examination he noted full free movement in her head and neck and, with gentle passive examination, a full range of movement in her left shoulder and no permanent impairment. Of significance in resolving the differences between the two orthopaedists are the findings of Dr Giles, clinical anatomist. He examined the plaintiff on 1 November 2000 and thereafter on 30 April 2004 and 27 February 2006. His physical examination is explained in considerable detail, particularly his measurement of the specific ranges of movement of the cervical spine in each of six directions. He made a comparison with the effects of those with similar ranges of movement in the lower spine. He formed the view that there was permanent residual disability which would affect the plaintiff's capacity to work and to enjoy life. He repeated this detailed measurement of movement at the two subsequent visits. By the time of the second visit, Dr Giles had the MRI results which showed desiccation localised at two levels, C4/5 and C5/6, which he interpreted as being related to injury. There was disc bulging at C5/6 which explained 4 JUDGMENT -- 4 of 15 -- some of the pain of which the plaintiff was complaining. He expressed his opinion that the plaintiff:- "will suffer some residual disability, particularly in her neck and left cervical shoulder region, and with respect to continuing headaches as it is now approximately four years and nine months since the MVA in question. In my opinion Ms Di Mauro does suffer from impairment as she suffers from an ongoing alteration in her previous held status. To a lesser extent, in my opinion, she will intermittently experience some low back pain. Based on the history, the residual impairment clearly has an influence on her quality of life and may well affect her ability to engage in full-time gainful employment in the future. She is currently not able to work full-time." I accept as accurate the measured detail of physical impairments identified by Dr Giles. These are seen to be consistent with the symptoms complained of. They support for the opinions expressed by him and independently by Dr Maguire. I reject the opinion of Dr Fraser which is based on what appears to have been a more casual assessment of the plaintiff's physical signs of injury and of her symptoms. The lay observation of the plaintiff's disability is also apt to give an erroneous impression. The plaintiff continued to work after sustaining her injuries. She was able to carry out her duties, though with difficulty. She used copious amounts of pain relief medications and she maintained a shortened working week. She did not discuss her difficulties with her co-workers, nor did she find it necessary to seek help from them in carrying out her allotted tasks. Her job was mainly sedentary, computer work, but she could take breaks from time to time. Long working hours increased her pain, but she could manage her three consecutive working days because of the relief provided by the four days that followed. She received assistance in her housework from her husband and her mother. 5 JUDGMENT -- 5 of 15 -- It is not surprising then that her supervisors at work and other co-workers were not aware of the extent of her injury. She simply did not let it show in carrying out her physical work tasks which were relatively confined. In similar vein are the observations made of the plaintiff and clandestinely recorded over three days in November 2006. These observations simply showed the plaintiff engaged in low energy level tasks which in no way cast doubt upon the range of movement assessments made by Dr Giles. I find that the plaintiff's injuries are as described by Dr Giles as follows:- 1. Ongoing chronic musculo ligamentus soft tissue injuries of the neck with (a) associated muscle spasm bilaterally in the upper to mid cervical spine; (b) headaches; and (c) measured restricted ranges of movement. 2. C5/6 intervertebral disc minor posterior bulge. 3. C4/5 and C5/6 minor intervertebral disc desiccation. 4. Left shoulder soft tissue injury based on the history. 6 JUDGMENT -- 6 of 15 -- 23042007 T(1)3/AW(CNS) M/T CAIR1/2007 (Jones J) 7 JUDGMENT 1 10 20 30 40 50 60 The effects of these injuries will continue and are likely to result in the earlier onset of degenerative changes. The ongoing impacts on this young married woman who works part- time and cares for two children will be quite significant. I assess general damages at $65,000 attributing $30,000 of that to the past period. This later sum attracts interest at two per cent for 7.5 years which calculates to $4,500. The sum of out-of-pocket expenses is agreed at $6,500. Interest on this amount at five per cent calculates to $2,437.50. After finishing high school at the age of 17 years the plaintiff successfully completed a TAFE course gaining certificates in office administration and in workplace training and assessment. She commenced work as a receptionist for a real estate agent and then at a television station. In approximately 1990 she commenced work with the Hinchinbrook Shire Council and has worked with that council in various capacities ever since; a total of 17 years. Her husband works for CSR at the sugar mill at Ingham as a workplace coordinator. He is a tradesman fitter by training and has had stable employment. -- 7 of 15 -- 23042007 T(1)3/AW(CNS) M/T CAIR1/2007 (Jones J) 8 JUDGMENT 1 10 20 30 40 50 60 Prior to 1 July 1999 the plaintiff's duties were mainly administrative but over time she reached the position of rates clerk which position was quite demanding. Because she wished to reduce the number of her working days she sought and was successful in obtaining a position as the coordinator of geographic information systems. Her task in that position was the mapping and recording in digital form of the physical assets of the shire - water mains, sewerage mains, roads, et cetera - and to maintain those records. It is necessary to mention the plaintiff's family commitments. At the time of the accident she had a son, Matthew, who was then two years old. He was profoundly deaf and from time to time had to go to Townsville for assessing. During 2003 he was fitted with a cochlea implant which for a time required periodic reviews and assessment. He is now 10 years of age. The plaintiff's daughter, Kiara, is now two years old and also has hearing deficits. The demands upon the plaintiff as a mother have been somewhat higher for these reasons than normal. The point of mentioning this is to make the assessment of whether the plaintiff, had she not been injured, was likely to return to full-time employment soon after the birth of Kiara. Her stated intention was to do so six months after the birth, -- 8 of 15 -- 23042007 T(1)3/AW(CNS) M/T CAIR1/2007 (Jones J) 9 JUDGMENT 1 10 20 30 40 50 60 i.e. on 14 February 2001, and her claim is calculated on that premise. After the incident and despite significant pain in her shoulders the plaintiff was able to continue with her part-time work duties. Her loss in the pre-trial period is predicated upon her loss by not being able to return to full- time work after the birth of her daughter. That situation continues to the present day and is likely to continue into the future. The plaintiff considers that she may have to further reduce her working hours in the future. If she does so I am not persuaded that it will be necessarily because of her injuries. Her condition has been stable now for some time, and she has been able to work notwithstanding the pain that she suffers. There is also a prospect that some pain relief may be gained from further medical treatment. The plaintiff's demands of caring for her children is likely to reduce as they grow older. The plaintiff has a supportive relationship with her husband and the anticipated reduction in her mother's support will be a factor in her future care needs. I am not persuaded that the plaintiff would have returned to work as early as February 2001. At this time Matthew was four years of age and thereafter Matthew's treatment demands would -- 9 of 15 -- 23042007 T(1)3/AW(CNS) M/T CAIR1/2007 (Jones J) 10 JUDGMENT 1 10 20 30 40 50 60 have militated against a return to full-time work where there was no imperative, financial or because of employer demand for her to do so. It was not possible to make an assessment as to the precise date on which the plaintiff may have returned to work, rather it must be assessed according to the principle set out in Malec v. J C Hutton Pty Ltd, (1990) 169 CLR 638. I accept the calculation of the maximum loss between February 2001 and 7 March 2007 at $89,473.10. Considering all the domestic circumstances of the plaintiff I would assess her loss at approximately 60 per cent of the total amount, which I would round off to $54,000, plus interest at five per cent for 7.5 years which computes to a further sum of $20,250. The calculation of past superannuation benefits is similarly treated and results in an allowance of $8,737.35. For the future the plaintiff claims $213,492 being the calculation of her present weekly loss through to the age of 65 years. The plaintiff is now 37 years old. The medical evidence which I accept is that she does not now have the capacity to engage in full-time employment and will not in the future. She will, one expects, have the opportunity for voluntary retirement before she is 65 years of age. There is also a consideration that even without these injuries there may have been incentives for her to reduce her working hours -- 10 of 15 -- 23042007 T(1)3/AW(CNS) M/T CAIR1/2007 (Jones J) 11 JUDGMENT 1 10 20 30 40 50 60 to something less than full time as the financial demands for raising children had passed. Again, the loss has to be considered in terms of the loss of a chance and in this regard I consider that a 75 per cent assessment to be appropriate. The allowance should therefore be $160,000. The loss of future superannuation treated similarly is assessed at $27,000. Past and future care. The defendant has raised a significant challenge to the amount of domestic assistance the plaintiff required by reason of her injuries. Most of the help that she has received and continues to receive is provided by her husband and her mother. Her physical capacity has been assessed by Ms Purse and Mr Morgan. Ms Purse opines that in 2002 the plaintiff would require seven hours assistance per week and that level continues to the present day. The plaintiff's evidence confirms that she has in fact received more help than this but I need to be concerned only with the assistance which her injuries have made necessary. Mr Morgan assessed her needs at five hours per week during the time of her pregnancy in 2000 and 4,000 per week thereafter. He assesses her present and continuing needs at four hours per week. -- 11 of 15 -- 23042007 D.1 T(1)4/AW(CNS) M/T CAIR1/2007 (Jones J) 12 JUDGMENT 1 10 20 30 40 50 60 Doing the best I can with this conflict in evidence and the fact that distinguishing between work tasks pre-accident and post-accident in the domestic environment is always difficult, there has to be some compromise. The injuries no doubt impacted more heavily soon after they were inflicted and for the term of the plaintiff's pregnancy. I will allow seven hours per week assistance for this period from the 27th of July 1999 to December 2000 a few months after Kiara was born. This is for 74 weeks at seven hours per week, subtotal 518 hours. For the balance period to the present, a period of 6.3 years I allow five hours per week, subtotal 1,638 hours. In total, approximately 2,150 hours at $20 per week, $43,000. I allow interest on this sum at five per cent for 7.5 years which computes to the sum of $16,125. For the future the allowance should be five hours per week taking into account the lessening physical demands and the increasing assistance likely to be gained from growing children. The allowance should continue for the period of the plaintiff's full potential working life. I will allow therefore five hours per week for 28 years (multiplier 797) at $25 per week. This calculates directly to a sum of $99,625 which I will round off to $100,000. The allowance for future medical, pharmaceutical, and travel expenses requires a consideration of whether the plaintiff is -- 12 of 15 -- 23042007 D.1 T(1)4/AW(CNS) M/T CAIR1/2007 (Jones J) 13 JUDGMENT 1 10 20 30 40 50 60 likely to undergo the treatment on her shoulder recommended by Dr Maguire. This involves a subacromial decompression and a bursectomy. The cost is in the order of $6,000. If successful this would have the effect of reducing pain in her shoulder but it seems not to have impact on other areas, more particularly on her capacity to work longer hours. The plaintiff's attitude is that she would consider treatment only when she cannot handle the pain anymore. I will make a small allowance for this prospective expenditure on the basis that the allowance needs to be reduced to take account of the delay factor and also the fact that the treatment might not happen at all. The plaintiff's claim for medical expenses totals $11,427.39, but for the reasons mentioned this must be discounted. I will allow $7,500 for medical expenses. For pharmaceutical expenses claimed in the sum of $22,152.83 based on the anticipated use of analgesics, heat creams, and anti-inflammatory gels, this must be reduced because there is no justifying medical opinion for all of these expenses. I will allow the sum of $12,000. As to rehabilitation expenses claimed in the sum of $5,631.92 upon the basis of regular ongoing Bowen therapy for the next 46 years I regard this period of treatment as excessive but -- 13 of 15 -- 23042007 D.1 T(1)4/AW(CNS) M/T CAIR1/2007 (Jones J) 14 JUDGMENT 1 10 20 30 40 50 60 some allowance is justified. I will allow $2,000 for treatment and $1,500 for travelling. The total allowance for future medical treatments, pharmaceutical expenses, rehabilitation and travel I allow at $22,500. In summary then I make the following allowances: General damages $ 65,000.00 Interest on $30,000 thereof 4,500.00 Special damages as agreed 6,500.00 Interest thereon 2,437.50 Past economic loss 54,000.00 Interest thereon 20,250.00 Past superannuation loss 8,737.35 Loss of future earning capacity 160,000.00 Loss of future superannuation 27,000.00 Past care 43,000.00 Interest thereon 16,125.00 Future care 100,000.00 Future treatment and travelling 22,500.00 TOTAL $530,049.85 I give judgment for the plaintiff against the second defendant for the sum of $530,049.85. -- 14 of 15 -- 23042007 D.1 T(1)4/AW(CNS) M/T CAIR1/2007 (Jones J) 15 JUDGMENT 1 10 20 30 40 50 60 ... HIS HONOUR: On the issue of costs I allow the party 28 days in which to make written submissions. ----- -- 15 of 15 --