- Unreported Judgment
IN THE SUPREME COURT OF QUEENSLAND
No. 129 of 1995
MACKAY DISTRICT REGISTRY
ANGELA MAVIS HOWDEN
SUNCORP INSURANCE AND FINANCE
JUDGMENT - DEMACK J.
DELIVERED the Seventh day of March, 1996.
Negligence - Employer and employee - False answers to interrogatories sworn by plaintiff - Plaintiff's allegations of negligence not proved.
Damages - Quantum - Cervical disc injury - Preexisting_difficulties - Female customers services officer aged 37 years.
D.V.C. McMeekin Plaintiff
B A Harrison Defendant
Macrossan & Amiet Plaintiff
John Taylor & Co Defendant
14th, 15th & 16th February, 1996
IN THE SUPREME COURT OF QUEENSLAND
No. 129 of 1995
MACKAY DISTRICT REGISTRY
ANGELA MAVIS HOWDEN
SUNCORP INSURANCE AND FINANCE
JUDGMENT - DEMACK J.
DELIVERED on the Seventh day of March, 1996
Mrs Howden alleges that on 16 June, 1993, in the course of her employment with the defendant, she suffered an injury to her neck. She says that this happened when she lifted a roller door that closed the entrance to the defendants' Canelands Branch in Mackay. There is ample evidence that the door was hard to lift and that subsequently the defendant altered the door and then replaced it with two doors. Mrs Howden says that the supervisor of the Canelands Branch, Mrs Marilyn Kelly, was present when she suffered the injury, and there is a record in the defendant's accident register of Mrs Howden tearing muscles in her right shoulder and neck on 16 June, 1993 (ex.39). Mrs Howden attended a physiotherapist, Mrs Linda Kelly, on 17 June, 1993, and a general practitioner, Dr Creber, on 18 June, 1993. Thereafter there is a well documented history of the treatment of a neck injury which could have been caused in the lifting incident Mrs Howden described.
Three things complicate what would otherwise be a straight forward case for the plaintiff. First, Mrs Howden swore false answers to interrogatories. Secondly, the accident register, written up by Mrs Marilyn Kelly, records the incident as involving either the lifting of the door or the lifting of a cash box. Thirdly, Mrs Linda Kelly swears that when Mrs Howden first saw her she was not sure how the pain in her neck, right shoulder and right arm began; Mrs Linda Kelly's notes support her evidence. These three matters raise serious doubts about the account Mrs Howden gives of how she injured her neck.
The false answers that Mrs Howden swore were in respect of interrogatories about previous neck injuries. The relevant chronology is:—
17 June, 1993 - Linda Kelly, physiotherapist, records “M.V.A. 2 years ago (G.B.) whiplash.”
2 July, 1993 - Dr Le Ray, general practitioner, records “M.V.A. 2 years ago, whiplash type injury”.
24 April, 1994 - Plaint issued in District Court (subsequently transferred to Supreme Court).
15 July, 1994 - Dr John Cameron, consultant neurologist, records “never had any previous neck problems”.
5 April, 1995 - Dr Iain Macfarlane, orthopaedic surgeon, records “Past history - nil related”.
17 May, 1995 - Mrs Howden answers a series of interrogatories as follows:—
- In answer to interrogatory number 9 I say that no time prior to the incident of 16th June, 1993 did I ever suffer pain or discomfort in my neck.
- In answer to interrogatory number 11 I say that at no time in the five years preceding 16th June, 1993 did I sustain an injury to my neck.
- In answer to interrogatory number 13 I say that at no time in the five years preceding 16th June, 1993 did I sustain an injury to my neck in a motor vehicle accident.
- In answer to Interrogatory number 15 I say that at no time in the five years preceding 16th June, 1993 did I sustain any personal injuries whatsoever in a motor vehicle accident.
- In answer to interrogatory number 17 I say that at no time in the five years immediately preceding 16th June, 1993 did I sustain any injuries in a motor vehicle accident which caused me to be absent from my place of employment for a period in excess of one week.
- In answer to interrogatory number 19 I say that at no time in the five years immediately preceding 16th June, 1993 did I sustain a whiplash injury to my neck in a motor vehicle accident or elsewhere.
- In answer to interrogatory number 21 I say that at no time in the five years preceding 16th June, 1993 did I attend upon any medical practitioner, upon any hospital or other medical institution in relation to any pain or discomfort in my neck or an injury to my neck.
23 August, 1995 - Mr Salzman, psychologist, records that, apart form adenoids and tonsils “her health prior to the accident was unremarkable.”
Mrs Howden also admitted that she had been seen by Dr Redmond on 17 July, 1995, and that she did not tell him about a 1991 motor vehicle accident in England in which she suffered a whiplash type injury. She also agreed that she did not mention this to Dr Geoffrey Askin, who performed surgery on her neck in 1994.
The evidence shows that following a motor vehicle accident on 27 December, 1991 she attended the South Axholme Group Practice in Epworth, South Yorkshire on three occasions and the Scunthorpe Chiropractic Clinic on three occasions (ex.'s 3 and 4). The records are not consistent. The chiropractic clinic records assert that she was discharged on 13 January, 1992. The medical practice records show an attendance on 17 January, 1992 at which the notation is “asked to rest for further 2/52”. Mrs Howden's explanation of this entry was unconvincing.
It is clear that the answers sworn on 17 May, 1995 and the information given to Drs. Cameron and MacFarlane were false. Mrs Howden was cross-examined about this and gave the following explanation for her answer to Dr Cameron:—
“And did you deliberately choose not to tell him of that history of neck problems?-- I believed I had disclosed it to Lance Le Ray, as you mentioned before and he agreed with me at the time that it was trivial; It was an unimportant, I felt, and that's the reason why I didn't tell Doctor Cameron. I just felt I'd made such a complete recovery, there couldn't be any damage there.”
She admitted that when she swore the answers on 17 May, 1995 she made a conscious decision not to refer to “the business in England (p.62, L.9).
She also gave the following answers (p.64):—
“Why did you not at that stage say, “Yes, I've had an injury in a motor vehicle accident. I hurt my neck. It was only minor. It was all over in a few weeks.”-- Yes, because - because it was over in such a short space of time, that's why I completely ignored it.
Even though-----?-- Thought that it was so trivial.
Even though you were swearing on oath?-- Yes.
You're aware that in swearing on oath for something that was incorrect, a person could be exposing themselves to some sort of sanction?-- At that time - yes, I realised I was doing the wrong thing. I do realise I have done the wrong thing. And I regret that, but I didn't intentionally - intend to mislead anyone.
Did you realise at that time that you were doing the wrong thing?-- No, I didn't think at the time I was doing the wrong thing, because I thought it was so minor.”
In my opinion, the critical date in the chronology is 24 April, 1994, when the plaint was issued. Before that, Mrs Howden had mentioned the previous neck injury. After the plaint was issued, she followed a deliberate course of lying to medical practitioners and to the Court. The obvious inference is that this was done to inflate her claim, and I am satisfied that this is the proper inference.
Turning then to the entry in the defendant's accident record (ex.39), the details recorded by Mrs Marilyn Kelly are:—
“10.30 a.m. Torn muscles in Right Shoulder & Neck. Unable to move head.
Visited Physiotherapist on 17/6/93. Accident could have happened when either opening front door of branch or lifting cash tin out of safe on arrival at work at 8.10 a.m. - 16/6/93.”
There was detailed cross-examination of Mrs Marilyn Kelly about this entry, particularly in the following passage (pp.177, 178):—
“Now, at the time you entered into - sorry, made the entry into that accident register, “Accident could have happened when either opening front door of branch or lifting cash tin out of safe on arrival at work”, would you say that the events of the preceding day and the discussions you'd had with Angela the preceding day were clear in your mind?-- Yes, I get - I believe they were clear in my mind, yes.
Now, if they were clear in the mind and what you've told us today was correct, Angela had emphatically told you that she had injured herself opening the door?-- Yes, she had.
And that would have been your state of mind at the time you made your entry?-- Well, I believe that to be true, yes.
Why, in those circumstances, did you enter what I've just read out twice into that entry about “either or”?-- Well, those - those are the two things that we do on arrival at work and that was probably the reason why I wrote those two things down. They were the only two things that could have, you know, that - the injury possibly could have occurred.
Was there some uncertainty on Angela's part in her dealings with you that suggested she didn't know which activities-----?-- No, I don't-----
-----had caused the injury?-- ----no, I don't believe that.
And was it something that Angela said to you that led you to include the entry - what I might put - which caused you to enter “either or”?-- No, I don't believe it had - Angela had any influence on what I wrote in the register.
Could it be the case that when Angela spoke to you initially, she was uncertain as to how it had happened?-- No, I don't believe that.
Could it be that she never told you that it definitely was the door until after you made your entry in the accident register along the lines of what I've just read out?-- No.
Did anyone at all mention to you the possibility that she had opened - sorry, that she had lifted the cash tin out of the safe on the morning of 16th and that could have caused her injuries?-- No, nobody-----
Was that something you thought up as a possible cause?-- Well, I believed that when I spoke with the Human Resources People in Brisbane that they suggested that, like, what it - what could it have been, sort of, and that was what made me write that in the register.
What, they suggested you should put in possibilities about-----?-- of how-----
-----what could have caused it?-- -----it could have happened.
Did you indicate to them that Angela had given you a very clear reason?-- I cannot remember.”
That explanation is unconvincing to me. If Mrs Howden had been emphatic on 16 June, 1993 that she felt a pulling sensation on the right-hand side of her body when she opened the roller-door, it is improbable that Mrs Marilyn Kelly would have made the entry she did. Her explanation which attempts to involve the “Human Resources People in Brisbane” is as unconvincing in print as it was when she gave it in court.
From one point of view, if Mrs Howden injured her spine at work through lifting, it does not matter much if she lifted a door or a coin box. However, the first medical diagnosis made by Dr Creber was of a “wry neck”. This is a condition that may be brought on by lifting, but it can occur by sleeping in an unusual position particularly in someone with a previous neck injury (p.234). Consequently, there must be satisfactory evidence about the onset of symptoms. When the recorded complaint is stated in the alternative the evidence cannot be described as satisfactory.
It is against this background that the conflict between Mrs Howden and Mrs Linda Kelly falls to be analysed. The relevant part of the cross examination of Mrs Howden reads (pp.47, 48):—
“I suggest to you that when you saw Linda Kelly, you told her that you did not know how you hurt yourself?-- No, that is not correct.
I suggest that what happened was that Linda Kelly explained to you that you could sustain an injury like that in a number of ways?-- No, that is not correct.
And I suggest that she asked you to describe different activities that you did which could explain - sorry, which could cause those injuries; in other words, she asked you what sort of things you did at work, at home?-- Yes, she asked me what I actually did at work, my duties, yes.
See, I'm suggesting to you that she asked you about your duties in the context that you couldn't tell her how you hurt yourself or how you'd been hurt and that she was exploring possible avenues?-- No, because I specifically told Linda when I first spoke to her about my opening the door and having the pulling sensation straight away. That was the reason for my going there.
Well, I suggest to you that it wasn't until she started asking you about your duties at work in the context of trying to find out hot it happened that you mentioned the door?-- No, I would not agree with that.
I suggest to you that when you spoke to her, you were not clear in your own mind as to how you'd injured yourself?-- No, when I went to see Linda the next day, I was positive I'd hurt myself lifting the door.
I suggest to you that you also raised with her the possibility that it could have had something to do with lifting coins at work?-- No, definitely not.”
Mrs Linda Kelly's evidence in chief included (p.139):—
“Was she able to point to you any specific incident which she related to the symptoms the day before?-- To my recollection and from my notation here, no.
Can you recall how the conversation went when that matter was raised? How it was raised?-- Well, It would have been raised in normal examination and taking of history as far as asking distinctly if there were any factors, activities, that seemed to indicate and related to, even any start of onset of symptoms.
Did she, at the outset, volunteer an incident which was the cause for those symptoms the preceding day?-- Not a specific incident.
Did you inquire of her as to how those symptoms - as to what caused those symptoms?-- Yes.
And how did that inquiry go?-- Well, it would have been in relation to the types of activities that sometimes can cause the symptoms to develop, activities at home such as vacuuming, gardening overhead, extended arm lifting and such as overhead lifting. I was running through the types of things that could - could have contributed - giving an indication of the types of things that could have predisposed it.
Why was it you were running through these things?-- Because we didn't have anything distinct or that appeared to be directly related to the onset of symptoms.
Before you did this run through, had she volunteered any particular incident?-- Not that I recall, no.
After you did the run through with her, did she suggest any particular incident or any possible incident?-- Well, two activities that apparently are necessary at her place of employment included lifting a coin bag single handed and opening a door. I understand it's the front door.
When she raised these with you, did she attribute her injuries to one or either of those incidents?-- No.
In what circumstances did she mention them?-- They were mentioned in relation to being similar to the types of activities I had run through, suggest - that could be suggestive on set of symptoms.
Would you say that when she spoke to you-----?-- Yes.
-----she was clear in her own mind that or clear in what she said to you is what I should say - that her symptoms had, in fact, been sustained as a result of opening the door at work the previous morning?-- No.”
Mrs Linda Kelly was cross-examined thoroughly, and the brief nature of the notes she made was explored. However, it seemed to me that she was not shaken on her assertion that Mrs Howden was not clear in her mind that her symptoms were the result of opening the door.
It is often easy enough to criticise the brief notes a medical or paramedical practitioner takes, and doubts can be raised about the usefulness of the notes to revive memory. Here, Mrs Howden said she did not believe Mrs Linda Kelly made any notes, and she spoke of a clear recollection of this (p. 49). As Mrs Howden has shown a disregard of her oath in falsely swearing an affidavit, she assumes a heavy burden when she asserts that an experienced physiotherapist who has no interest in the outcome of the case is lying to the Court.
I am satisfied that when Mrs Howden consulted Mrs Linda Kelly on 17 June, 1993 she did not assert that her symptoms had come on following the lifting of the door. The door, however, was a regular source of complaint among staff, and by the time Mrs Howden saw Dr Creber on 18 June, 1993 the “heavy roller door” was to blame (ex.32, entry for 18/6/93).
It is common enough that spinal injuries do not produce immediate disabling pain. It is conceivable that a worker may perform a series of lifting activities in a morning, experience increasing pain in the afternoon, be unable next day to identify any particular lifting incident as possible cause, but, with reflection overnight, recall a sensation which had been barely noticed at the time. That is not the case here. Mrs Howden is adamant that she felt the pulling sensation at the time she lifted the roller door and she never had any doubt that her symptoms followed from that. She has involved herself in a conflict with Mrs Linda Kelly which I resolved in favour of Mrs Linda Kelly. The entry in the defendant's accident register which challenges her assertion of certainty is unconvincingly explained away by Mrs Marilyn Kelly who, in her evidence, echoes Mrs Howden's professed certainty. Against the background of the false answers, that has the appearance of grasping for a basis for seeking compensation. Initially the compensation was simply for time off work, but when the treatment was not effective it has become the basis for this action. Once the action commenced, the earlier motor vehicle accident was concealed. I am not satisfied on the balance of probabilities that Mrs Howden sustained an injury when she lifted the roller door at the defendants' Canelands premises on 16 June, 1993.
If it should be found otherwise, I am satisfied that the door was awkward to lift and that raising it could involve forces of up to 40 kilograms. This was not put in issue. This is well in excess of a safe load, and would justify a finding of negligence, as, indeed, would the design of the handles which were fitted.
As to damages which I am required to assess, the major area of dispute concerned the effect of the 1991 motor vehicle accident upon Mrs Howden's neck. I have mentioned briefly the brief notes from the South Axholme Group Practice (ex.3) which contain the following entry for 17 January, 1992:
“S. Had treatment on neck. Asked to rest for further 2/52”
The reference to treatment would seem to be to chiropractic treatment, and the report from the Scunthorpe Chiropractic Clinic (ex.4) says she was discharged on 13 January, 1992. Consequently the words “asked to rest for further 2/52” are unclear. The letter “s” suggests this is part of the presenting symptoms, and it could mean that the chiropractor had asked Mrs Howden to rest for a fortnight. However, Mrs Howden said she was working from home, and the letter she wrote to her friend Mrs Lees (ex.29) contained the following:—
“Thankgoodness due to the car accident we had on Christmas Eve, that we were both off work throughout the whole period so we could work on the house.”
That suggests the injury was minor and an excuse to get time off to work on the house the Howdens were preparing for sale.
It is very hard to assess the extent of Mrs Howden's pre-existing disabilities. Quite apart from her lies to which reference has been made, she appears to be a person who needs to appear cheerful. On the video, (ex.33) she is seen at a party moving her head with some vigour, although she had probably attended for physiotherapy the day before and again two days later. The photo (ex.43) taken at a New Years' Eve party on 31 December, 1993 shows her with a cervical collar to which coloured stars have been fixed. This cheerfulness made her a valued employee of the defendant. It also means that what people observe from her demeanour is not necessarily a reliable indication of her state of health.
However, things have changed for her since the first surgery on her neck failed to improve her condition. She has been under constant medical supervision including time at the Belmont Hospital pain clinic. There is now no doubt she has significant disability in her neck and a somatoform pain disorder.
Dr Macfarlane expresses the opinion that Mrs Howden has a twenty-five percent impairment of the whole patient. He attributes twenty percent of this disability to the pre-existing changes and damages arising from the 1991 accident. Dr Cameron attributes half the disability to the 1991 accident. Dr. Cameron's opinion is to some extent based on a misunderstanding about the onset of symptoms in 1993. However, he was not aware of the findings that would be made about Mrs Howden's credibility. If she lied about the 1991 incident, then she may well lie about the extent of residual problems. There is also the puzzling sentence in the letter, which I have quoted and the unexplained entry in the doctors' notes on 17 January, 1992.
In the circumstances where it is not possible to be confident about the extent of Mrs Howden's residual disabilities following the motor vehicle accident in 1991, all that can be done is to treat each incident as having a similar impact upon her body.
The main impact of this is in respect of economic loss. I am satisfied that by the time Mrs Howden reached her mid-fifties she would be in similar disabilities to those she has at present even if there had been no aggravation in June, 1993.
Dealing then with the heads of damage, there is no basis for discounting past economic loss. Mrs Howden was in regular employment with the defendant, and a valued employee. Because of the aggravation of her neck problems she has been off work. I would allow the amount claimed in ex.46 together with the interest, that is $44,771.00 and $3,328.00.
For the future, I am satisfied that there will be a period after the trial during which Mrs Howden will improve and after that she will have a diminished capacity to earn income up to her mid-fifties. She was born on 8 November, 1958, and so is 37 years old. Her current nett weekly wage, if still working for the defendant, would be $344.25. Allowing the loss of that for one year to permit further improvement involves a sum of $17,556.75. For the next 16 years, a loss of $150.00 amounts to $82,800. These figures cannot be precise because of the many possibilities involved. I would allow $100,000.00 for future loss of earning capacity. For past and future loss of superannuation benefit I would allow $7,300.00.
Special damages paid by the Workers' Compensation Board, including income tax amount to $34,066.15, and special damages paid by Mrs Howden amount to $3,926.00 on which amount I shall allow interest of $636.00.
The amounts claimed for future recurring expenses in ex.46 are based on the premise that all of Mrs Howden's future needs for pain relief are compensible because they are a consequence of an incident on 16 June, 1993. A substantial part, on my findings, is caused by the incident on 27 December, 1991. I would allow $15,000.00 for future medical and pharmaceutical expenses and recurring expenses related to a Tens machine and gymnasium fees.
For services gratuitously rendered in the past, I shall allow most of those claimed by Mr Howden. He has had to make major adjustments to his lifestyle to care for his wife since June, 1993, particularly once surgery commenced. However, it seems to me that the claim of two hours per day at present is excessive. I would allow 1 hour. An amount of $18,000.00 would cover this item, and interest of $950.00 should be allowed. The services needed in the future, $70.00 per week for ten years would allow for improvement, during which time little help will be needed, and then deterioration until the pre-existing problems assert themselves. That is an amount of $30,000.00.
There is no doubt that since June, 1993, Mrs Howden has suffered a great deal of pain and discomfort in the neck, right shoulder and right arm. She has undergone two major operations to her neck, has had extensive physiotherapy and has undertaken intense programs of rehabilitation. Her lifestyle has been significantly changed. She has a significant permanent disability which requires regular exercise, medication and massage. She was previously a person who enjoyed an active and creative lifestyle. Much of this has changed. I would allow $45,000.00 for pain, suffering and loss of amenities. $20,000.00 relates to the past, and attracts $1,064.00 interest.
In view of my findings about cause of the plaintiff's disabilities, there will be judgment for the defendant with costs, including reserved costs.
- Published Case Name:
Angela Howden v Suncorp Insurance and Finance
- Shortened Case Name:
Angela Howden v Suncorp Insurance and Finance
 QSC 230
30 Nov -0001
No Litigation History