Camille v Kahlon & Anor [2002] QDC 341

DISTRICT COURT OF QUEENSLAND CITATION: Camille v Kahlon & Anor [2002] QDC 341 PARTIES: MAUREEN MARIE CAMILLE Plaintiff v KARCHARAN KAHLON First Defendant and AUSTRALIAN ASSOCIATED MOTOR INSURERS ACN 004 791 744 Second Defendant FILE NO/S: D4109 of 2001 DIVISION: PROCEEDING: Trial ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 20 December 2002 DELIVERED AT: Brisbane HEARING DATE: 19, 20 August 2002 JUDGE: McGill DCJ ORDER: Judgment that the defendants pay the plaintiff $187,707. CATCHWORDS: DAMAGES – Personal Injury – neck – 15%. COUNSEL: P L Feely for the plaintiff P D Corkery for the defendants SOLICITORS: McInnes Wilson Lawyers for the plaintiff Deacons Lawyers for the defendants [1] By this action the plaintiff claims damages in respect of injuries she suffered in a motor vehicle accident on 14 May 2000. The first defendant’s vehicle collided at an intersection with the vehicle in which the plaintiff was riding as a front seat passenger. Liability was accepted on the pleadings, and quantum remains in dispute. [2] The force of the collision pushed the vehicle in which the plaintiff was riding across the road almost into a fence and it turned 180°; page 14. The plaintiff’s body was -- 1 of 8 -- 2 thrown forward and sideways. The plaintiff was able in due course to get out through the other side of the vehicle, which had to be towed away and was written off as a result of the accident. She felt in shock after the accident, and had pain in the neck and shoulder areas. After an uncomfortable night she saw a GP the following day who found muscle spasms, prescribed some painkillers, and sent her for an x-ray: Exhibit 1. She was off work for a week, and then returned to work because of some financial pressure that she was under; page 15. Dr Chandani reported that he had seen the plaintiff on 15 May 2000 with left sided neck pain. She had muscle spasm and was treated with muscle relaxant and with Panadeine Forte. X-rays showed degenerative changes. She was treated with Temazepam and an anti-inflammatory, and referred to physiotherapy. X-rays showing a little degenerative spurring but no disc protrusion; Exhibit 2. [3] The plaintiff is a citizen of the Seychelles, and has worked for years in a variety of secretarial positions. In 1992 she came to Australia with her three children, in order to given them a good education; page 12. She obtained employment at the Logan Hospital as an administrative officer doing secretarial and administrative work, and remained in that job at the time of the accident, and until 15 December 2000; page 13. The duties in that position involved typing, filing, collating medical records, extracting medical records for files, reception duties, and answering telephones; page 13, and see Exhibit 28. After she left her employment at the end of 2000, she sold the house they had been living in and returned to the Seychelles with her son (now 18); two older daughters remained in Australia to continue their studies and were living in a unit; page 19. [4] After the accident she received some physiotherapy at the Logan Hospital, and subsequently saw a private physiotherapist for five or six sessions, but did not find this helpful; page 15, 27. She continued to take Brufen for pain relief, remaining in pain ever since the accident; page 16. She continued to work because of her financial commitments, but took some additional sick leave as set out in Exhibit 7. The schedule shows five days off immediately after the accident, and a further 25 ½ days off, although the plaintiff said that four of these were for reasons other than as a consequence of the accident 1 . There was much more sick leave taken in 2000 than in any of the other years; in two prior years none had been taken. The plaintiff has had some other long standing medical problems, which have not significantly interfered with her ability to work: p.39. [5] The plaintiff said that her condition did not improve and that she left work in December 2000 because she could no longer cope with full time work; page 18. She might have been able to continue work at reduced hours, but the difficulty was that she had to support herself and the three children in Australia on what she was earning, and would not have been able to do that while working reduced hours. She remained out of the workforce until September 2001, when she began full time (p.80) secretarial/administrative work for the Seychelles Chamber of Commerce, a position that she retained until February 2002; page 19. She said that when she returned to full time work her pain again became bad, particularly in the afternoon, and eventually she resigned because she felt that she was unable to continue to work 1 A spider bite: p.18 The records of the plaintiff’s GP reveal that this was in June 2000; Exhibit 2. -- 2 of 8 -- 3 because of the pain. She said that she was unable to find part time work in the Seychelles, having looked for it; page 21. [6] The plaintiff said that prior to the accident her intention was to remain in Australia until her children had finished their education, which would have been in about four or five years time, i.e. 2006 or 2007; page 22. Ms Welsh, the woman who was the administrative team leader at the Logan Hospital, leading until September 2000 the team in which the plaintiff was working (page 121), said that she had spoken to the plaintiff in January 2000, and been told that the plaintiff was leaving to return to the Seychelles at the end of that year; page 125. She recalled that in about June or July of 2000 they went to see her supervisor to find out when the plaintiff should put in her resignation; page 129. Ms Welsh was quite definite that it was around the beginning of the year 2000 when the plaintiff’s returning to the Seychelles at about the end of 2000 first came up. The plaintiff denied that she had told Ms Welsh or anyone else prior to the accident that she was intending to return to the Seychelles at the end of 2000. Ms Welsh struck me as a straightforward witness who seemed definitely to recall that she knew by early 2000 of the plaintiff’s intention to return home that year, and in respect of this I prefer the evidence of Ms Welsh. [7] Although Ms Welsh could not be precise about the date when she was first told, she was quite definite that it was early in the year. That would be consistent with the plaintiff’s saying that she would leave at the end of the year after her son had finished that particular year’s schooling. She could easily have decided something like that a year in advance. Although she ultimately gave 14 days notice in December when she left the job (Exhibit 17), she had been there for some time and it is quite plausible that she might well want to know some months in advance how much notice she ought to give. The defendant did not call the supervisor with whom the meeting was supposed to have been held, and I would infer the supervisor would be unable to confirm that such a meeting had been held at that time. But that really does not help one way or the other; if such a meeting had been held I would not necessarily expect the supervisor to recall it or when it was held, and a meeting of that nature in the middle of the year would not necessarily be inconsistent with the plaintiff’s reacting to her injury. [8] Ms Welsh recalled the plaintiff being involved in an accident and having a few days off work as a result; page 124. She could not remember the roster being adjusted to accommodate her injury; page 164. She regarded the plaintiff as a satisfactory worker; page 125. She said the office was busy, and the work was constant and demanding; page 126. The plaintiff agreed that she did not ask to have her hours reduced (for the reason given earlier) and did not approach the rehabilitation unit at Logan Hospital: p.58. I do not regard this as inconsistent with her evidence as to symptoms. [9] The Secretary General of the Seychelles Chamber of Commerce, with whom the plaintiff had been working, gave evidence by telephone: page 92. She confirmed that the plaintiff had worked from September 2001 2 until February 2002: page 92. She was very pleased with the plaintiff’s performance and found her a hard worker 2 She began work on 7 September 2001: Exhibit 19. -- 3 of 8 -- 4 and very well suited to the position. She was diligent and devoted to the work she was doing: page 93. She had noticed the plaintiff rubbing her neck at times and that led her to question her about neck problems; page 95. She could see that the plaintiff was uncomfortable especially late in the afternoon each day. She appeared at times to be in pain: page 75. The plaintiff was able to maintain a good standard of work, and indeed would be welcome back in the job: page 98. I regard her evidence as confirming that the plaintiff was having difficulty coping with that job as a result of her injury, and left that position because of the difficulty. This is important confirmation that the plaintiff has suffered a significant and lasting injury. Medical evidence [10] The plaintiff was seen by Dr Todman a neurologist on 14 June 2001 for the purposes of a report; Exhibit 3. Dr Todman noted complaints of continuous neck pain more pronounced on the left side sometimes extending into the left arm. There were also intermittent pins and needles in the left arm, but these had subsequently eased. On examination movements were restricted in all directions. There was tenderness and muscle spasm present. He thought there had been a whiplash injury which was producing symptoms likely to permanent, and causing a 15% disability of the whole person. She could work part time but would find it difficult to work full time or to do any heavy physical work or lifting. [11] Dr Todman provided a further report in July 2001 after he had seen the results of an MRI scan. He was of the opinion that there was a small central disc bulge at the C4/5 and a small central right sided disc bulge at C5/6, but no nerve root compression at either level. He felt that the pre-existing degenerative changes had been exacerbated and made symptomatic by the accident. The condition was not susceptible to surgical treatment, and he remained of the view that the condition was permanent. Dr Todman regarded the degree of degeneration as being consistent with the plaintiff’s age; page 77. [12] The plaintiff was seen on 12 June 2001 by Dr White an orthopaedic surgeon for the purpose of a report; Exhibit 5. Dr White was given a similar history, but found no spasm on examination and no tenderness, and some reduction in neck movements. He regarded the pre-existing degenerative change as significant, and thought a progressive worsening of the condition was likely. He thought that some of the disruption to the discs shown on the MRI scan had been caused by the accident; page 69. He thought her condition was likely to be permanent although at that stage it was too early to be definite about the matter and he assessed a whole person impairment of the order of 20%, of which one third could at this stage be attributed to the injury. Dr White regarded the degenerative change as predisposing the spine to injury in the event of trauma; page 61. As she got older less and less trauma would have been needed to stir up the neck and make it symptomatic if the accident had not happened; page 68. Dr White thought the plaintiff could undertake full time work provided that she was able to move around and do different tasks; page 65. [13] The plaintiff saw Dr Martin, an orthopaedic surgeon, on 13 June 2001 for a report at the request of the defendant; Exhibit 25. The plaintiff complained of constant pain -- 4 of 8 -- 5 on the left side of the neck extending to the left shoulder, and some pain in the right shoulder blade with the condition becoming worse rather than better. She complained of pain when turning the head to the left but was able to demonstrate a full range of neck movements, although with some discomfort on rotation to the left. There was no tenderness to palpation. Dr Martin did not have the opportunity of seeing any x-rays, but did not think that there was any continuing disability. He subsequently saw a report on the MRI scan which was conducted about the same time. The report indicated multi-level degeneration of the cervical spine, some compatible with age and some slightly in excess of the norm for her age. He did not think there was any evidence of nerve root or spinal cord compression, and remained of the view that there was no evidence of any continuing problem caused by the motor vehicle accident. [14] The plaintiff was seen by Dr Weidmann, neurosurgeon on 24 May 2002 (p.131) at the request of the defendant for a report; Exhibit 24. According to Dr Weidmann the plaintiff’s complaints included pain radiating to the top of the shoulders and at times the arms. There were no associated headaches. All treatment had failed to assist. She could do most things around the house but only for short periods when she would have to stop and rest. Her recreational activities were limited. On examination he found minor limitation of neck movements in all directions, and some tenderness on palpation at the top of the left shoulder. There were no objective neurological abnormalities. He saw the reports of the CT Scan in November 2000 and the MRI in June 2001, but not the actual films. He thought that the radiological findings indicated merely degeneration. He regarded the degree of degeneration indicated by the reports as common for a person of her age: page 131. [15] Dr Weidmann was of the opinion that the plaintiff had suffered a whiplash injury; ongoing neck stiffness with radiation into the shoulders would be consistent with such an injury. It was unusual for there to be no improvement at all, but not inconsistent. He thought her continuing symptoms were of a mechanical nature, which would not render her unfit to return to administrative or secretarial duties, or to do housework. He assessed the impairment in accordance with AMA guidelines at 5% permanent partial impairment of the whole person. It was very difficult for him to say just how much work the plaintiff would be able to do; that would depend really on her pain threshold. He did think however, that she would be able to do household cleaning and other chores, on the basis of his experience of a large number of other patients with similar injuries: page 124. Had the plaintiff not suffered the injury she probably would not have developed similar symptoms as a result of the degeneration: page 143. [16] I discount the evidence of Dr. Martin, because I accept that the plaintiff has some continuing symptoms of some significance. I place weight on his evidence only as to the significance of the degree of degeneration for someone her age. It seemed to me that Dr. White and Dr. Weidmann had similar opinions, and generally I prefer their evidence. The main difference was as to the percentage disability; I regard Dr. Weidmann as having assessed this without regard to pain, which is the main component from the practical point of view. Allowing for that, so far as such a percentage is meaningful I accept that the plaintiff has suffered a permanent 15% whole body disability. -- 5 of 8 -- 6 Assessment [17] The plaintiff was born on 2 February 1954, and is therefore 48. In general I accept her evidence, although I treat it with some caution in view of my finding as to the direct conflict with Ms. Welsh. I accept that she has suffered a whiplash injury in this accident, and as a result has been left with continuous pain in the neck, which is aggravated by working and more strenuous housework. To some extent the pain is controlled by Brufen, but it is if anything getting worse rather than better. In view of what was shown in the X-rays, it is likely that degeneration of the neck has been stirred up and made symptomatic by the injury, which is why it has not healed, and indeed why it will not heal. There is some difference of opinion as to whether the degeneration was worse than normal for someone of that age, but I think that the weight of the medical evidence suggests it was a little worse than average. It probably would not have become symptomatic anyway, although it might have done so. [18] Although from the medical point of view the plaintiff’s problems are seen as being largely attributable to the degeneration, in terms of legal causation they were caused by the accident. My impression overall is that this is a little worse for the plaintiff than is commonly the case with lasting whiplash injuries seen in courts, although perhaps not dramatically so. Various recreational activities have been curtailed: p.26. There is no real prospect of improvement, and any worsening of the condition is likely to be associated with further degeneration. In all the circumstances I assess damages for pain and suffering and loss of amenities at $28,000 of which I attribute $10,000 to the past loss. That will bear interest of 2% per annum for 22/3 years. Economic loss [19] With regard to economic loss, I do not accept that the plaintiff lost her employment in Australia as a result of the injury. I do not think it follows that the plaintiff was coping with the job without difficulties: I think that the job was causing her problems, but that she was prepared to carry on (with some time off work) essentially because she wanted to be able to keep the job until the end of the year, when she was happy to give it up. [20] There does seem to have been some period following her return to the Seychelles before she was able to obtain alternative employment, and I think it likely that part of this at least was attributable to her having wanted to spend some time resting her neck in the hope that that would help it. When she returned to work, she ultimately found she was not able to cope with full time employment and I accept that the plaintiff will not be able to work full time indefinitely in the future. She may be able to work full time for relatively short periods, or work part time3 , but in the light of the evidence it is unlikely that she will be able to find suitable part time or occasional employment of that nature, so it is likely that her earning capacity has, in a practical sense, been substantially lost as a result of the accident. 3 Since leaving the job in the Seychelles she has sought other work: p.85. -- 6 of 8 -- 7 [21] No loss was claimed in respect of the sick leave while the plaintiff was working in Brisbane. But for the accident it is likely that she would have worked somewhat earlier after she returned to the Seychelles, and would probably have remained in the position she obtained (or some equivalent position) indefinitely. Economic loss is therefore appropriately assessed on the basis of her earnings in that position for one year and eight months, less the five months for which she was actually working leaving a period of 15 months. There was evidence of cheque butts in respect of the plaintiff’s salary in the Seychelles: Exhibits 14, 12, p.32. These appeared to show two sums paid each month, in the amount R3,015 and in the amount of R1,160. It is not entirely clear why there were two payments, but I will assume that both were made to the plaintiff. It was agreed that the after-tax amount was R4,175 per month: p108. It appears that an appropriate exchange rate is 2.819 rupees to the Australian dollar: Exhibit 21. On this basis the plaintiff was earning $1,481 a month, so that past economic loss was $20,215. [22] With regard to future economic loss, but for the accident the plaintiff might have expected to continue to work for another 15 years: page 34. The present value of $340 per week for 15 years, discounted at 5%, is $187,000, but this figure must be reduced because of the vicissitudes of life, and the possibility that there might have been some problems with degeneration of the spine in any event. There is also the possibility that the plaintiff may get some less demanding work from time to time in the future even in the Seychelles. In view of all these considerations much more than the usual discount should be allowed, and for future economic loss I will allow the sum of $120,000. [23] Loss of superannuation benefits was claimed, but only in respect of the period when on the plaintiff’s case she would have been continuing to work in Australia. On my findings that issue does not arise. Gratuitous Care [24] The plaintiff said that whereas before the accident she had been doing most of the housework herself, after the accident she was doing the minimum and her children had to take over a lot of it: page 23. It must be remembered that the plaintiff was continuing to work full time except for the week after the accident, and on the whole I think six hours a week is a reasonable allowance during the period while the plaintiff was working. After the plaintiff ceased work I would have expected her to have a greater capacity to do housework, because she would have time to do it at her own pace, and she would no longer have been exhausted by the work she was doing. I would expect that thereafter only the heavy cleaning tasks would be beyond her, and I will allow two hours per week. Allowing 30 weeks at 6 hours per week plus 3 weeks at 2 hours per week produces a total of 186 hours, which at the accepted hourly rate of $15.60 (and see Exhibit 20) comes to $2,901.60 which I will round down to $2,900. This will carry interest at 8% per annum for 2 years, $464. [25] The plaintiff is not claiming past care in respect of the period after she returned from the Seychelles. In relation to future care, I remain of the view that the plaintiff’s need for care will be limited in the future so long as she is not working, -- 7 of 8 -- 8 and that some allowance should be made only for the heaviest household tasks, and for the possibility that at times in the future she will be working. This is not really susceptible of calculation. I will allow a global sum of $7,500. [26] With regard to special damages, medical expenses were proved of $585.30 as identified in the plaintiff’s written submissions (and see Exhibit 16 and p.29), and travelling expenses of $38 (at an agreed rate of 50 cents per kilometre: page 35.) The plaintiff has been taking Brufen at a cost of about $20 per month and painkillers at a cost of about $5 per month since the accident (p.25), so I will allow $750 for past medication. Special damages therefore total $1,373, of which $788 carries interest at 5% for 22/3 years, $105. [27] Finally there was a claim made for future medication. No doubt the current regime at least will continue indefinitely. I think a global allowance of $5,000 is reasonable for that. Summary (a) Pain and suffering and loss of amenities $28,000 (b) Interest on $10,000 at 2% for 2 2/3 years $533 (c) Past economic loss $20,215 (d) Interest at 4% for 2 years $1,617 (e) Future economic loss $120,000 (f) Past care $2,900 (g) Interest $464 (h) Future care $7,500 (i) Special damages $1,373 (j) Interest $105 (k) Future medication $5,000 TOTAL $187,707 [28] There will therefore be judgment that the defendants pay the plaintiff $187,707, which includes $2,719 by way of interest. Unless some order is appropriate I will order the defendants to pay the plaintiff’s costs of the action to be assessed. -- 8 of 8 --