Coyne v Samootin & FAI General Insurance Co Ltd
[1996] QDC 314
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- Coyne v Samootin & FAI General Insurance Co Ltd[1996] QDC 314
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Coyne v Samootin & FAI General Insurance Co Ltd[1996] QDC 314
Coyne v Samootin & FAI General Insurance Co Ltd[1996] QDC 314
IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND | Plaint No 3310 of 1996 |
BETWEEN:
CAROLINE COYNE | Plaintiff |
AND
PETER SAMOOTIN | Defendant |
AND
FAI GENERAL INSURANCE COMPANY LIMITED | Defendant by Election |
REASONS FOR JUDGMENT - JUDGE McGILL S.C.
Delivered on the 13th day of December, 1996
The plaintiff was injured on 8 June 1994 when the vehicle which she was driving was struck from behind by the defendant's vehicle while crossing the Captain Cook Bridge heading outbound from the City. Her vehicle was hit towards the right hand side, while it was still moving, and was then propelled into a vehicle which had stopped in front of her on the bridge. (Ex. 13) She estimated that the second impact was the more severe. (p.58) Liability is not in issue.
She did not immediately notice any pain, being upset and preoccupied with the fact of the accident, but by the time she returned home, she was experiencing pain and discomfort in the neck, and some tightness and distress throughout the spine, (p.7, Ex 13). She also had a headache, and had an uncomfortable night. The following day she was off work. She saw Dr Fry, a G.P., on 11 June 1994 (Ex. 12) when she was found to be suffering bruising on the lower abdomen, more to the right than to the left, apparently caused by a seat belt. There was a full range of neck movement but discomfort and some pain at the end of each neck movement. The doctor's report, Exhibit 12, does not note any complaint of back pain at that time. Dr Fry suggested some gentle neck exercises which she undertook, (p. 14) and pain killers which she took when necessary.
At the date of the accident the plaintiff was 30 years of age, having been born on 29 March 1964. (p.6) She was married with two children, born in 1990 and 1993 (p.27). She was then in employment, having started work as a cook at the Bavarian Steakhouse on 1 May 1994, (Ex 13, p.1) apparently working on a casual basis although she was working an average of 30 hours per week (Ex 13, p.3). This was her first job since the birth of her second child and she had been off work during her second pregnancy (although earning money by taking in ironing) (p.14) so that this was apparently her first employment since mid-1992.
She left school in 1980 and worked as a shop assistant, although she qualified as a chef by a part-time TAFE course completed in 1986. (Ex 13, p.6) While doing the course, which ran for two years, she worked as a kitchen hand in a coffee lounge, and thereafter she worked for four years, either full-time or part-time, as a chef in a variety of positions. She was off work for about one year after the birth of her first child, but then returned to work for a time before her second pregnancy.
Evidence was given by Mr Hartley who had 10 years experience as a chef and knew the plaintiff in about 1990 when she worked with him for a period of about 9 to 10 months at the Camp Hill Hotel. He was then head chef and she worked as a casual cook. He found her a good worker who worked hard and was uncomplaining (p.36) and showed proper regard for safe work practices in matters such as lifting (p.41). He spoke highly of her as an employee.
The plaintiff resumed her work at the Bavarian Steakhouse after only one day off and continued working in that position until the business closed down in January 1995. (Ex. 13) She has not worked since.
The plaintiff said that while she was working in that job her pain in both the neck and the back steadily increased, (p.8) to the point where by December 1994, she could barely cope with the job and would have left it had it not been for the fact that she did not want to leave her employers stuck during the Christmas rush. (Ex.13, p.4) The pain diminished to some extent after she stopped work, but is still a problem and has in recent months, if anything, become worse. (p.13)
The principle issues in contention during the trial were:
- (a)whether the lower back pain was caused by the collision.
- (b)the extent of the plaintiff's disability as a consequence of her injuries, and in particular, whether they interfere with her capacity to work.
As to the former, the plaintiff's evidence was that she had some pain in the lower back after the accident, (p.7) and that is supported by an account given to Dr Pentis in September 1994. (Ex 2) She said that for a time the neck pain was more severe, (p.7). She did not complain to Dr Pentis in September about any continuing problems with the lower back, (Ex.2) but she did develop some problems in that area about that time, because she joined Weight Watchers at about that time and one of the reasons for doing so was the hope that it would help her lower back, (p.33) On 29 November 1994 she saw a Dr Hegerty and complained of back pain of one weeks duration which she related to the motor vehicle accident; the doctor regarded this as a reasonable explanation. (Ex. 8)
Dr Pentis saw the plaintiff again on 3 April 1996 and described some continuing problems with both the cervical and lumbar spine (Ex.8), but seems to have regarded the former as more significant as he attributed the whole of a 5% loss of function of the spine to the cervical spine, (Ex 4) He saw the plaintiff again on 12 November 1996. The assessment was much the same, although he would have added 2½% to the loss of function of the spine attributable to the lumbar spine, (Ex.5)
Dr Pentis said that collisions where a vehicle was struck from behind are a recognised cause of problems with the lumbar region (page 52), and this is supported by Dr Boys (page 61). Dr Pentis did, however, see the work being undertaken by the plaintiff at the Bavarian Steakhouse as being a possible alternative explanation for the development of the symptoms in the lumbar spine (p.44-45), and found some difficulty in choosing the more likely explanation (p.48), although he came down in favour of the view that it was more likely that the accident had caused the problems: pages 43, 52-3.
Dr Boys expressed the view that the lower back pain was a consequence of constitutional factors and it was unrelated to the motor vehicle accident (Exhibit 10), but he also expressed the view that the plaintiff was now experiencing non-specific muscular strain symptoms which were constitutional, reflecting her physique, weight and level of fitness, in respect of both the neck and the back, since he was of the view that the consequences of the motor vehicle accident had resolved without permanent impairment of the function of the neck: Exhibit 11. In other words, he put the back now in the same category as the neck.
It appears, however, that this opinion was based on an account of the symptoms, or lack of symptoms, in the lower back which differed from the plaintiff's account in the witness box, and when the latter account was put to Dr Boys (page 62), he agreed that it was feasible that the back pain may have been related to the car accident.
Dr Boys' assessment of the plaintiff generally was that her back was not really any different from any other adult back in terms of causing her pain if she attempted anything strenuous (P.64). The plaintiff's evidence described a degree and frequency of pain which seemed to me was a good deal worse than that, and accordingly I am not prepared to accept Dr Boys' assessment of the plaintiff's condition.
The plaintiff's evidence dates the lower back problems to the motor vehicle accident, and is to the effect that she had no lower back pain prior to this (p.8). In view of this, and in the light of the evidence of Dr Pentis, I am satisfied that the lower back pain the plaintiff now suffers probably was caused by the accident.
There are two other issues. The first is the argument that working at the Bavarian Steakhouse aggravated the back condition so that it is now worse than it otherwise would have been. That may well be the case, (Dr Pentis p.47) but in my opinion it does not mean that the current condition is not caused in the relevant sense by the accident.
The other is the question of whether the plaintiff would have suffered back trouble in any event from doing that work. Dr Pentis was of the opinion that that work could have produced back problems - page 44-5 - and as I mentioned, experienced some difficulty in expressing an opinion on whether the back would have been any different had the accident not occurred. If the plaintiff might have been in the same condition in any event, even if the accident had not occurred, strictly speaking what she has lost as a result of the accident is the chance of avoiding that consequence, and she is appropriately compensated on that basis: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638. That is so where the chance that has been lost is a relatively small one, or as here, a relatively large one. I will therefore assess damages on the basis that but for the accident she would probably not have had back problems in the short term, but not on the basis that she certainly would not have had lower back problems.
The plaintiff's evidence as to the extent and frequency of her pain was not always consistent, and her oral evidence seemed generally to paint a somewhat blacker picture than the accounts given to the various doctors, and in her statement, Exhibit 13. Without suggesting that the plaintiff was attempting to mislead me, or seriously exaggerating her complaints, I am not necessarily prepared to accept as accurate everything that she said in the course of her oral evidence, and I propose to assess the seriousness of her condition in the light of the evidence as a whole. That indicates that the plaintiff's current condition, and I suspect the condition over most of the period since she ceased work, is that she has some symptoms in the neck or back on most but not all days, but that these are quite mild unless she has done something to provoke her spine, such as some of the heavier types of housework (p.24) or gardening, (p.9) but when her spine is provoked in this way, she does suffer pain to an extent that it interferes with her normal life. In addition, efforts to avoid doing things which provoke the spine interfere with her normal life. The medical evidence indicates that the condition is essentially static: it is not expected to clear up in time, (p.53) nor is it expected to get worse (Ex.5). Although I think the plaintiff is worse off than a normal adult in terms of back pain, no doubt in the more distant future a point will be reached where her condition will be overtaken by the ordinary aging process.
With regard to the question of whether the plaintiff is now employable, Dr Pentis was of the view that physically she was able to work although it would be better for her not to be doing work as strenuous as that required at the Bavarian Steakhouse. (Ex.5) Dr Boys was of the view that she was not disabled from employment by the consequences of the accident, (Ex. 11) but as I have said, I do not accept his assessment of the plaintiff's condition. There was conflict between two of the plaintiff's witnesses in relation to the prospects of rehabilitation. Mr Donnelly, a physiotherapist with some particular experience in rehabilitating people who had suffered work injuries, predominantly spine injuries, thought that with the benefit of some rehabilitation course, involving physiotherapy and exercise, and a graduated return to work, there were reasonable prospects of the plaintiff being physically able to work, although probably not in work as strenuous as she had been doing at the Bavarian Steakhouse (p.72).
The plaintiff also called Mr Malich, who was a psychologist with some qualifications and experience in rehabilitation, particularly involving counselling and administration of rehabilitation services (Ex.15) whose evidence was essentially that the plaintiff was unemployable, being unable to work at present and being unsuitable for retraining, and that she would not be helped by any rehabilitation course (Ex.7). His evidence was, in effect, that she would be unable to find a job within her capacity, largely because employers would refuse to employ her because of the state of her neck and back. It seemed to me that this evidence was inconsistent with the practical experience of rehabilitating people with neck and back problems which Mr Donnelly had had, and on the whole I found Mr Donnelly a more convincing witness. No doubt it is easier to rehabilitate people where the Workers' Compensation Board Rehabilitation Scheme is in place, but Mr Donnelly was aware of the plaintiff's circumstances and I expect that his assessment took them into account.
It seems to me that the position is that the plaintiff is physically capable of working at least in jobs which are less strenuous than the Bavarian Steakhouse job was in December 1994. She said that this was the most strenuous job she had ever had (p. 11). I think it is of some significance that the plaintiff left that job in January 1995, not because she could not cope any longer, but because the business closed down. Indeed, when work there slowed down after the busy Christmas and New Year period, she said that she felt that she might have been able to continue when it wasn't so hectic: page 18.
The plaintiff had, on 1 November, three hours work in preparing food in a hotel on a busy day just to see how she could go and found that it brought on pain in the neck and back. (Ex. 13, p.8) Mr Donnelly did not think that that was a good indication of her prospects of returning to work, because of an absence of a period of preparation (p.72) I think, in the light of the medical evidence, that she would be able to do some types of work, for example, in a sandwich bar or snack bar or coffee shop or as a shop assistant, and she would probably be able to cope with a position as a chef if it was less hectic and strenuous than at the Bavarian Steakhouse during the Christmas rush, but I think she will have difficulty obtaining a suitable position and that any of this work would entail an increase in pain, for her. I think it likely that there will be some economic loss in any event, and I propose to proceed on the basis that if she were otherwise in employment except for this accident she will be out of work a third of the time because of this difficulty. I do not think that this case is one of those where the plaintiff is so disabled that it is appropriate to assume that the plaintiff is unemployable unless the defendant can lead evidence of particular employment which is both suitable and available. In any case, I think that this approach is supported by the evidence before me, to the extent that I accept it: I do not accept the evidence of Mr Malich. His evidence seemed to me to be inconsistent with the evidence of Dr Pentis (p.55) and Mr Donnelly, and I was not impressed by Mr Malich, who gave me the distinct impression that he was setting out to paint as black a picture as possible of the prospects of the plaintiff, rather than provide an objective assessment.
The plaintiff's evidence was that, had it not been for the accident, she intended to keep working until a normal retirement age (Ex.13, p.7). She had normally been in employment in the past, although not usually full-time employment, and I think she probably would have continued ordinarily to be in employment indefinitely but for the accident, probably employed on a casual or part-time basis. Nevertheless the plaintiff would not have been in continuous employment, and not all jobs would have involved as much work as did the job at the Bavarian Steakhouse.
I also think that as the plaintiff got older, a point would be reached where she would be reluctant to engage in the more strenuous sort of work as a chef in any event. The work being undertaken by the plaintiff as a chef was moderately strenuous, as appears from her evidence and the evidence of Mr Hartley, and I find it difficult to accept that she would have kept up that sort of work until something like age 60. There is also the consideration that the plaintiff is somewhat overweight. In 1995, she joined Weight Watchers, and with the benefit of one of their diet and exercise programs was able to lose a significant amount of weight (24 kilograms) but has subsequently put it back on again (p.23). This is likely to have reduced her ability to cope in the long term with the more strenuous work involved in being a chef. I think it likely, therefore, that well before age 60 she would either have stopped work or moved into some less demanding job.
Taking all these factors into account, I think it is reasonable to assess the plaintiff's earning prospects, apart from the accident or other problems preventing her from working, by assuming that for 20 years she would be working continuously with a level of renumeration equivalent to that achieved at the Bavarian Steakhouse, but that she would then stop work. That will probably overestimate the plaintiff's earning capacity during the next 20 years, but underestimate it thereafter, in a way which I think overall will cancel out.
As mentioned earlier, some allowance should be made for the prospect that there might have been interference with earning capacity as a result of back problems arising because of the strenuous nature of the work, even if the accident had not occurred, and I propose to make a deduction of one third for this, and all other contingencies.
I assess damages for pain and suffering and loss of amenities at the sum of $20,000 of which I attribute $8,000 to the past. I will allow interest on this at 2% for 2½ years. As indicated earlier, this takes into account that I expect an increase in pain in the future if the plaintiff returns to employment. In making this assessment I have had particular regard to the decisions in O'Leary v. Singh (Plaint 3918/91, 8.4.93, Botting DCJ); Elkjaer v. Abzery (Plaint 4798/90, 23.4.93, Wylie DCJ); Radel v. Larson (Gladstone Plaint 8/94, 9.3.95, Nase DCJ); Camilleri v. Borg (Mackay Plaint 198/94, 3.4.96, White DCJ).
With regard to past economic loss, I think the plaintiff has lost the chance of avoiding problems with the lower back associated with continued employment at the Bavarian Steakhouse. Had it not been for the accident this may have developed and may have prevented the plaintiff from continuing in that employment in any event, and the plaintiff may well not have been in that or equivalent employment in any event for the whole of the period up to trial. I therefore propose to assess past economic loss on the basis of ⅔ of $270 per week net for the whole of that period, which with some rounding off comes to $18,000. Interest at 6%, again with some rounding off, comes to $2,000. With regard to future economic loss, there will be two components. Allowance has to be made for the prospect that the plaintiff would have been suffering interference because of back problems or other contingencies in any event, and also will have greater difficulty obtaining employment, and will probably be in less renumerative employment. As indicated earlier, I propose to limit the economic loss calculations to the period of the next 20 years. For that period I will disregard ⅓ of the time, to allow for the prospect of unemployment as a result of back problems and other contingencies arising apart from the accident. Of the remaining ⅔, I will assume the plaintiff is unemployed ⅓ of the time, so that economic loss for that ⅓ will be at $270 per week over 20 years. In respect of the other ⅔, I will assume the plaintiff is in employment, but earning a reduced income of $200 net per week, giving a loss of $70 per week for 20 years Discounting this at 5%, ⅓ of ⅔ of $270 per week for 20 years is approximately $39.500, and ⅔ of ⅔ of $70 per week for 20 years is approximately $20,500. This calculation suggests an amount for future economic loss of $60,000. I am not attempting by this calculation to give a spurious appearance of mathematical accuracy to a process which necessarily involves matters of evaluation and judgment. The calculation shows what the appropriate amount would be if the assessment were made on a much simplified factual basis, and it is then a matter of evaluation and judgment to determine to what extent an assessment of the actual circumstances of this plaintiff requires some adjustment to take into account the difference between the true circumstances and the simplified version, so as to produce an allowance for future economic loss which is fair to both parties. In this case I do not think that such an adjustment is required of the figure calculated on the basis indicated, and I therefore allow $60,000 for future economic loss.
There was some evidence that the plaintiff's husband did some additional work around the house as a result of the plaintiff's injury (See Ex.13, p.9), and a claim is made for one hour a day for three months after the accident. One of the matters referred to in the oral evidence was mowing (p. 17) but the plaintiff's husband normally did the mowing anyway (p. 16) and the other matters referred to at page 17 I think justify an allowance of ½ hour a day which over the period of three months comes to $427.50. Interest at 2% for 2½ years on this is $21.40. I propose to allow $1,000 for the cost of future rehabilitation and physiotherapy (Exhibit 1) and special damages was agreed at $140.
Summary
Pain and suffering and Loss of Amenities | $ 20,000.00 |
Interest on past loss | $ 400.00 |
Past economic loss | $ 18,000.00 |
Interest | $ 2,000.00 |
Future economic loss | $ 60,000.00 |
Gratuitous care | $ 427.50 |
Interest | $ 21.40 |
Future rehabilitation | $ 1,000.00 |
Special damages | $ 140.00 |
Total: | $101,988.90 |
I therefore give judgment for the plaintiff against the defendant in the sum of $99,567.50, together with interest of $2,421.40.