Berkley v Raby & VACC Insurance Co Ltd [1999] QDC 69

IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND Plaint No 2035 of 1997 BETWEEN: THERESE DIMETRA LORRAINE BERKLEY Plaintiff AND: JOHN RABY Defendant AND: VACC INSURANCE CO LIMITED Defendant REASONS FOR JUDGMENT -McLAUCHLAN QC D.C.J. Delivered the 19th day of April 1999 This is an assessment of damages in an action in which liability is admitted. The Plaintiff was involved in a collision between her motor vehicle and a vehicle driven by the First Defendant on the 5th December 1994. She alleges that as a result of this accident she suffered injury to her neck, an injury to her low back, headaches, an injury to her right knee, anxiety shock and emotional distress. The Plaintiff had suffered injury on two occasions prior to the 5th December 1994. On the 25th June 1993 she injured her right knee whilst attempting to push a car in a car park, an activity in which she was engaged in the course of her then employment. On the 4th August 1994 she was involved in a motor vehicle accident in which allegedly her knee injury was aggravated and she also suffered some low back pain. It also appears that the Plaintiff had, prior -- 1 of 14 -- 2 to the date of the accident the subject of the present action, suffered from an anxiety state associated with various stressors in her life. The Plaintiff consulted a number of medical and paramedical practitioners in relation to these matters. In relation to the first two incidents of 26th June 1993 and 4th August 1994 she consulted amongst others Trudy Leivesley, a clinical psychologist who saw her in September 1994 and on the 14th October 1994. She was seen again in relation to the subject accident of the 5th December 1994 by Trudy Leivesley on the 24th November 1997. In the last interview with Ms Leivesley she departed significantly from her report of events given on the earlier dates. For example with respect to physical restrictions suffered by her she told the psychologist that she suffered physical restrictions following the first accident of June 1993 such that she was unable to engage in a wide range of activities including:- tasks involving bending, such as heavy housework tasks; prolonged walking; prolonged sitting; prolonged standing; prolonged driving. She said she was no longer able to engage in her hobby activities which included horse riding, bushwalking and sailing. She said she was unable to get out of the bathtub unassisted and that she experienced difficulties in a wide range of activities including getting up from a chair, ascending and descending stairs, general housekeeping tasks and pushing a shopping trolley. She said that as a result of the second accident in August 1994 all her physical restrictions had become more pronounced. She said that her knee had become much more “restricted” and that -- 2 of 14 -- 3 she had difficulties with the use of her arm. When she was again seen in 1997 with respect to the subject accident she said that prior to this accident the difficulties which she had experienced following the two prior accidents had “lessened right down”, that she was “coping” with ongoing knee problems which had “lessened” and that she could again plan to do things and work. Following the third accident she said that she was very limited in her physical activities with limited mobility in both legs, limited neck movement as a result of her whiplash injury and was restricted in her movement as a result of a lower pelvic injury. She stated that she had to be “very careful” at what she did, that she could not sit comfortably for prolonged periods because of the pelvic injury, that the problems with her right knee and leg were ongoing and that she could not cope with household tasks if she had engaged in “physical work” outside of the home. She stated that of the three accidents she considered the injuries sustained in the subject accident to have had the biggest impact upon her life. Similarly with respect to pain, when seen in 1994, she said that following the first accident in June 1993 she experienced severe knee pain “the majority of the time”. She said the severity of the pain fluctuated and at times became an “excruciating, stabbing pain”. She said at times she felt as though her leg would “go from under” her and that she considered the knee pain was exacerbated by most activities. She said she experienced “cluster headaches” about every two weeks and that these headaches sometimes lasted for about three days. She went on to say that following the second accident in August 1994 her knee pain became more severe and that she experienced fluctuating neck pain which she considered to be exacerbated by stress. She said that she continued to experience “clusters” of headaches about every two weeks which lasted for about two to three days. She said she considered they were exacerbated by stress and that she took Mersyndol for them. When seen later in 1997, after the subject accident had occurred, she -- 3 of 14 -- 4 said that the knee pain which she suffered after the first accident “eased right off” prior to the second accident and that she had “learnt to live with it” to the extent it “wasn’t completely stopping (her) from doing things”. She said that “cluster headaches” which she experienced after the first accident had “eased off” prior to the second accident. She said that whilst her knee pain increased after the second accident it then “settled”. She went on to say that after the subject accident “everything was worse” and that she experienced severe pain in her right knee for “quite a few weeks”, she experienced severe neck and back pain for about four weeks post accident and she experienced constant and severe headaches for about four weeks post accident. She said that her knee was “sore” all the time and that the pain was exacerbated by activity. She stated that in her lower pelvic area she experienced pain “all the time” and a “numb” feeling like “pins and needles all through” some of the time. She also said that she experienced “shocking” headaches which lasted for a couple of days about every fortnight. The pattern of reporting is similar in relation to other aspects of her symptoms. For example with regard to anxiety, when seen in 1994 the Plaintiff said that following the first accident of June 1993 she became generally more anxious and felt “scared of being alone”. She began to experience panic attacks at Christmastime 1993 and she said that her feelings of anxiety caused her to experience diarrhoea, hot and cold flushes and to lose her appetite. She said that following the second accident of August 1994 her anxiety state had become more pronounced. She said she had developed “phobias” and was fearful to be away from home particularly at night, she was fearful of swimming and of driving and that she then experienced a range of fears restrictive to her daily life and which represented a constant worry. -- 4 of 14 -- 5 When seen in 1997 after the subject accident, the plaintiff said that the anxiety she had experienced relating to the first accident had resolved prior to the second accident and that she had regained her confidence at that point. She said that after the second accident she felt “angry” rather than anxious. However after the subject accident she stated that her anxiety increased and about two weeks thereafter she began to experience “panic attacks” every twenty or thirty minutes. She said that whilst she continued to experience panic attacks most days she was usually able to cope with them by utilising relaxation strategies. She also said that she had become fearful in a variety of different situations. She said that for about two months after the third accident she would not drive but at the time of the interview she was able to drive with comfort. It also appears that the plaintiff was suffering from anxiety and associated panic attacks in December 1987 after a separation from her husband. It is obvious therefore that the plaintiff’s psychological difficulties and physical difficulties may plausibly be regarded as having a genesis other than in the accident of 5th December 1994 in respect of which she presently sues. She engaged in litigation in respect of the two prior incidents and the respective actions were settled on the 17th August 1998. The plaintiff went onto workers’ compensation shortly following the first incident for about a fortnight. Thereafter she returned to employment for some months but then went onto Workers’ Compensation Board benefits again between the 4th March 1994 and the 16th August 1994. She was then in receipt of Social Security benefits from the 18th August to the 14th September 1994. In the meantime she had received physiotherapy treatment for her knee and acupuncture treatment, and a bone scan had been taken of the right knee which provided no objective support for the symptoms of which she complained. She was referred to rehabilitation at Belmont Private Hospital which appeared not to produce any particular benefit for her. Whilst she was in receipt of the Workers’ -- 5 of 14 -- 6 Compensation Board benefits the second accident occurred on the 4th August 1994. She then received further physiotherapy treatment for her knee and for her neck. On the 5th December 1994 the subject accident occurred, in respect of which the plaintiff complained initially of a whiplash injury to her neck, injury to her back and grazing to her lower legs where they had hit the dashboard of the car. The plaintiff was the victim of a rear end collision. She was off work for a short period - about two weeks - and then returned to her then employment as a casual sales and marketing manager for an agent of Toshiba. However on 24th December 1994 she had a stress attack and consulted a psychiatrist. Thereafter she attended the Valley Community Mental Health Clinic twice a week for four weeks. She said that she did not continue with this treatment because of the negative effect upon her of other patients (schizophrenics) who also attended the clinic for treatment. From the date of the accident the plaintiff said that the household tasks were performed by her partner Ken Duell and her two daughters Shontell and Stephanie until her breakdown on the 24th December. Her mother Margaret Rolfe then moved into the house and remained there until the 31st March 1995. She did the bulk of the household work during that period with Shontell and Stephanie assisting in minor ways. Mrs Rolfe in her evidence said that the plaintiff was unable to do anything for herself during a large part of the three month period but that she had physically improved towards the end, to the point where Mrs Rolfe felt she should leave the house to prevent her daughter becoming too psychologically dependent upon her. Her memory in this respect was not entirely accurate because it is an admitted fact that the plaintiff returned to work for the Toshiba agent on the 1st February 1995 and remained in that employment until the 28th May 1995. In May 1995 the plaintiff commenced receipt of a supporting parent’s pension of -- 6 of 14 -- 7 $175.00 per week. She was employed for some four months as a manageress of dog kennels at Samford. She was further employed from the end of January to the 11th March 1998 in sales and marketing by an enterprise called CPM and again from March to September 1998 she was employed with PLC Pet Wash at Samford in the area of mobile pet care. On 13th September 1998 she commenced receipt of a supporting parent’s pension of $345.00 per fortnight. She has not been employed since. From what the plaintiff said to the clinical psychologist and to other medical professionals it would seem clear that she suffered, from the time of her first injury in June 1993 up to the 14th of October 1994, substantially the injuries of which she complains, and which she now attributes to the accident of the 5th December 1994. The plaintiff’s case is, in effect, that although she was suffering physical and psychological symptoms in October 1994 which she then attributed to the accidents of June 1993 and August 1994, these symptoms in substance resolved between 14th October 1994 and 5th December 1994 when she suffered the subject accident. This is of course a possibility but it seems to me unlikely that symptoms which had continued unbroken from June 1993 to August 1994 and had worsened between then and October 1994 should then substantially resolve within the period of less than two months from 14th October 1994 to 5th December 1994. Unfortunately this issue depends largely upon the credit of the plaintiff, who says that this is what happened, and I consider that I have to treat the plaintiff’s evidence with some reserve. The reports of Trudy Leivesley make it clear that the plaintiff can not be regarded as a reliable historian, and a similar conclusion should in my view be drawn from a discrepancy between the document which is in evidence under the heading “Griffiths v Kerkemeyer Schedule” (Exhibit 32) and the statement of loss and damage filed in the action, in relation to household duties performed between the 31st March 1995 and 22nd January 1999 by the two -- 7 of 14 -- 8 girls Shontell and Stephanie. A similar conclusion of unreliability must be made, in my opinion, in relation to the evidence of Mrs Rolfe and of Shontell. The plaintiff admitted under cross- examination that she had made false statements in a document for the purpose of obtaining employment, and had involved another person in that dishonesty by his claiming to have employed her in a secretarial capacity for a year at a salary of $28,000. The plaintiff’s explanation for this is that if she had told the truth about her physical condition she would not have been able to obtain employment. No doubt she would have experienced much more difficulty in obtaining employment had she been truthful about her work history, but the fact remains that there is clear evidence that the plaintiff will depart from the truth to suit her purposes. Again, she gave evidence of part of a conversation which she alleged occurred between her and two investigators who had called at her house, which was denied by one of the investigators called on behalf of the defendant. My impression was that the plaintiff’s evidence concerning that conversation was very convenient for her, and of doubtful credibility whereas I had no reason to suspect the sincerity of the evidence given by the investigator. All in all, I do not think that I can rely upon the credit of the plaintiff to resolve any significant issues in the action. One doctor gave it as his opinion that the injury to the plaintiff’s right knee was caused by the initial incident in June 1993 and had not been affected by either the subject accident or the prior accident of August 1994. He also considered that the injury, which could only be a soft tissue injury, could not really have produced the symptoms of which the plaintiff complains. Dr Fraser was overseas at the hearing and so he could not be cross-examined and accordingly his evidence has less weight than it would otherwise have. Dr McMenamin thought that the plaintiff had a soft tissue injury in the knee region which he assessed at five to seven per cent loss of function -- 8 of 14 -- 9 of the right lower limb following the accident of 25th June 1993. Dr Gillett thought when he first saw the plaintiff in June 1994, that is after the first incident, that she would likely be left with a residual disability of 5% loss of lower limb function although at the time he saw her her disability would be regarded as a 15% loss of lower limb function. He anticipated that with appropriate exercise her ability to perform the tasks of daily life, sport, recreation and work would improve and in the longer term he did not believe she would be restricted in her tasks of work although at that time it was reasonable for her to have difficulties with working. In his subsequent report of 25th September 1997 his opinion was expressed as follows:- “It is my opinion that your client has persistent symptoms relating to a consequence of the first accident which produced some retro-patella damage. On the level of symptoms and current situation she would be assessed as some 6% impairment of lower limb function. As a consequence of the third accident further injury occurred to the knee. The first accident caused a 3% impairment and the third accident caused a 3% impairment, combining to give a total of 6% loss of lower limb function. Her back condition would be assessed as a 2½% impairment of bodily function and that is historically related to the third accident. She has had pain and suffering relating to the other injuries. In relation to her knee condition and her back condition, with weight reduction, exercise and strengthening, I believe, she would be able to undertake the type of work she did in the past. Surgery is not required for her condition. In general terms management of her condition from an orthopaedic perspective is time, exercise, strengthening and weight reduction. The psychological issues are outside my area of expertise.” In evidence Dr Gillett indicated that the improvement in the plaintiff’s quadriceps muscle of her right leg had been such that the residual disability flowing from the “first accident” had reduced to 3% rather than 5%. The plaintiff is overweight, as evidently she was when seen by various of the doctors. The material indicates that she was overweight prior to the subject accident, although her weight may have increased since. -- 9 of 14 -- 10 Dr Reddan, a consultant psychiatrist concedes in her reports and evidence that the subject accident was the precipitant or one of the precipitants of the development of the accumulating stressors in the plaintiff’s life into a disorder. She initially thought that the plaintiff probably developed an episode of major depression, and that the panic attacks she complained of were symptomatic of the major depression. However on studying the material from The Valley Adult Mental Health Centre she considered that the plaintiff was either particularly prone to anxiety or was suffering from panic disorder before December 1994 and that the accumulating stressors over 1994 and then the motor vehicle accident of early December 1994 precipitated an exacerbation of this condition with the development of secondary depression. However in her view there was a rapid resolution of the plaintiff’s symptoms such that the period during which the plaintiff could be said to be incapacitated by psychiatric symptoms was of the order of six months or nine months. It may be reasonable in the circumstances to take the view that the plaintiff suffered some degree of psychiatric incapacity for a period of twelve months following the accident in December 1994 but in my view the plaintiff fails to prove any greater psychiatric or psychological disability arising out of the accident. In relation to her physical disabilities I consider that there was a very minor exacerbation of the condition of her knee as a result of the accident. I consider that in any case the plaintiff’s complaints relating to her knee have been exaggerated. Similarly it is plain that the injury to her lower back is very minor, and is a matter which she mentioned to the physiotherapist Daniel Helion in connection with the accident of the 4th August 1994 and referred to by him in Exhibit 10. I do not think that the plaintiff was disabled as a result of her knee or back injury from performing clerical work of the type to which she was accustomed, although for a short period she may have suffered some discomfort in doing so. Her level of -- 10 of 14 -- 11 physical disability is very low. Looking at the matter broadly I think it is right to attribute her back symptoms substantially to the subject accident and to attribute fifty per cent of her knee symptoms to the subject accident. I am not persuaded that these symptoms considered singly or in combination would have prevented the plaintiff from continuing with her clerical work. I consider that she may well have been substantially disabled from performing her duties clerical or otherwise competently as a result of her anxiety state, of which the subject accident can be regarded as a precipitant. In my view the plaintiff is entitled to be compensated for the additional loss and damage suffered by her by reason of the subject accident, over and above the loss and damage already suffered on account of the two prior incidents. Dr Gillett has put the exacerbation of her knee condition at 3% loss of function of her right lower limb, and estimated 2½% loss of function in relation to her lower back. She suffered a temporary injury to her neck but this has now settled. I doubt that there has been any substantial worsening of the headaches which she had suffered prior to the accident of 5th December. Her anxiety condition worsened following the accident but on the balance of probabilities I consider that this condition was resolved within twelve months thereafter. I do not consider that the plaintiff’s physical injuries prevented her from carrying out the clerical duties in which she has been from time to time engaged but I think that it is reasonable to conclude that she was substantially disabled from returning to the workforce because of her psychological state for a period of twelve months following the accident. I assess damages for pain suffering and loss of amenities in the sum of $15,000.00. I allow interest on that sum at 2% per annum up to December 1995 and thereafter for a further 3.3 years at 4% per annum, amounting to a further $2,280.00. -- 11 of 14 -- 12 With respect to special damages in my opinion some deductions are required to be made from the schedule which is in evidence as Exhibit 31. The amount claimed in respect of purchases of Panadol is $1,258.00. I am prepared to allow the expense of these purchases against the defendant to the extent of two packets per week at $4.00 per packet for one year, amounting to $416.00. The total is therefore reduced in respect of that item by the amount of $852.00. With respect to lawn mowing expenses the amount claimed is $1,800.00. This work is of course heavier than the work for which the plaintiff typically obtained remuneration. I am prepared to allow one half of that amount so that there will be a further reduction of $900.00. The resulting amount is $3,278.00, which I award in respect of special damages. I also award interest on $2,324.00 at 5% per annum for a period of 4.3 years, amounting to $500.00. With respect to past economic loss, I consider the plaintiff is entitled to the actual loss of income suffered by her within the period of approximately twelve months following the date of the accident. For the periods from 5th December 1994 to 19th December 1994 and from 24th December 1994 to 1st February 1995 the figures have been calculated on behalf of the plaintiff at $511.60 and $1,534.80 respectively. These figures are based on earnings of $255.80 per week which the plaintiff earned as a casual sales and marketing manager employed as an agent for Toshiba. The remaining period from 28th May 1995 to 31st December 1995, a period of approximately 30 weeks, produces a figure calculated on the same basis of $7,674.00. The total loss of income thus amounts to $9,720.40. Loss of superannuation contributions is also claimed. On a gross income of $300.00 per week, and allowing the claim at 5% of the gross amount for the periods from 5th December 1994 to 19th December 1994 and from 24th December 1994 to 1st February 1995, and at 6% for the period from 28th May 1995 to 31st December 1995 the -- 12 of 14 -- 13 figure is $660.00. That amount is allowed in respect of loss of superannuation contributions. I will allow interest on the total amount of $10,380.40 at 5% for a period of twelve months, and at 10% for a further period of 3.3 years, amounting to $3,945.00. In my opinion no allowance should be made in the assessment of damages for future economic loss and I award nothing under this head. The evidence in relation to the claim for Griffiths v Kerkemeyer damages is in an unsatisfactory state. Bearing that in mind, and also being mindful of the previous injuries suffered by the plaintiff, in respect of which she required assistance with household tasks, I think it is reasonable to assess damages under this head at the agreed rate of $9.50 per hour for four hours per day over a period of four months, or 120 days. That amounts to a sum of $4,560.00 which is awarded accordingly. I allow interest on that sum for 4.3 years at 2% per annum amounting to $392.16. Any current or future need of assistance which the plaintiff may have in respect of domestic chores has not, in my view, been shown to be attributable to the accident which is the subject of this litigation. I do not consider that sufficient basis has been laid in the evidence for a claim for future medication, physiotherapy, counselling or other future expenses. Damages are accordingly assessed as follows:- Pain, suffering and loss of amenities $15,000.00 Interest $2,280.00 Special damages $3,278.00 -- 13 of 14 -- 14 Interest $500.00 Past economic loss $10,380.40 Interest $3,945.00 Griffiths v. Kerkemeyer $4,560.00 Interest $392.16 _________ $40,335.56 _________ -- 14 of 14 --