New South Wales Supreme Court CITATION : Miller v Hawkins [1999] NSWSC 1163 CURRENT JURISDICTION : Civil FILE NUMBER(S) : 300063/97 HEARING DATE(S) : 28/10/99,29/10/99,1/11/99 JUDGMENT DATE : 1 December 1999 PARTIES : Kathleen Mary Miller (Plt) Diane Hawkins (Def) JUDGMENT OF : Newman J COUNSEL : D T Kennedy SC (Plt) J P Guihot (Def) SOLICITORS : Stanger & Clarke (Plt) Hunt & Hunt (Def) CATCHWORDS : DECISION : Assessment only THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION NEWMAN J WEDNESDAY, 1 DECEMBER 1999 NEWCASTLE: 63/97 - MILLER v HAWKINS JUDGMENT 1 HIS HONOUR: This is a claim for damages for personal injuries arising out of a motor vehicle accident which happened on 23 July 1996. Breach of duty of care has been admitted by the defendant thus the matter is one for the assessment of damages pursuant to the Motor Accidents Act 1988 should the plaintiff qualify for such damages. 2 Because a breach of duty has been conceded by the defendant it is not necessary for me to examine the circumstances of the accident in great detail. However, it is relevant to note that the accident involved a collision between two motor cars of great severity. Photographs of the plaintiff's car demonstrate the impaction between the vehicles was one involving considerable force. 3 That the plaintiff suffered injuries in the accident was not the subject of any contest. Such was the force of the impact that her knees had come into contact with the dashboard of the vehicle and her chest came into hard contact with the steering wheel. 4 She was taken from the scene of the accident which was in the Newcastle area, to the John Hunter hospital. At that hospital investigations revealed that she had suffered the following injuries: 1. A fracture of the inferior pole of her right patella. 2. Lacerations and soft tissue injuries to both her knees including trauma to both patella. 3. Soft tissue injuries to her lower back. 4. Soft tissue injuries to her cervical spine. 5. Fracture to her left 6th, 7th, and 8th ribs. 6. Bruising caused by her seat belt to her right shoulder and left breast. 7. Facial bruising. 8. Bruising to her left upper arm. 5 Her immediate treatment involved suturing of the lacerations over her left knee, bed rest and the administration of pain killing medication. 6 She came under the care of her general practitioner, Dr S Cawley and an orthopaedic surgeon, Dr P Berton. Shortly after the accident the plaintiff commenced a regime of physiotherapy which, with certain variations of treatment, has continued to the present day. 7 The plaintiff suffers pain in her neck, low back and both knees. She also commenced to develop headaches. In addition to the physiotherapy program she also undertook supervised hydrotherapy involving flotation, massage and other hydro-therapeutic measures. 8 In September 1996 she was referred to a rehabilitation specialist, a Dr C Hollo in relation to the pain she was suffering in her neck and low back. Essentially, the plaintiff has been under the care of Dr Berton for the problems which she has had with her knees and Dr Hollo for her neck and low back pain up to the present time. Additionally, she has been attending her general practitioner, Dr Cawley. 9 At the time of the accident the plaintiff was employed as a customer service manager and was initially off work for a period of approximately three months before returning to a restricted work program. 10 For some time after the accident the plaintiff, who lived alone, required assistance from members of her family to carry out the normal functions of living. This assistance, as I understand the evidence, continued until she first resumed work. 11 It is convenient in dealing with the plaintiff's injuries to deal with them separately. I shall first detail her history from October 1996 in relation to her knee problems. 12 Such was the condition of her knees that Dr Berton advised that she undergo surgery. She was admitted to the Lake Macquarie Private hospital on 13 November 1996 where Dr Berton performed the procedures of bilateral arthroscopies and lateral releases to her left and right legs. She remained in hospital until 18 November 1996 when she was discharged on crutches and bandages. Again her treatment involved the use of physiotherapy and administration of pain killing medication. 13 As time went by improvement occurred in the condition of her knees although in February 1997 she still reported sensation of crunching and aching in those parts of her body. 14 She returned to work on 17 February 1997 again working restricted hours and also having restrictions upon any physical activities she might have to undertake, limited though these might be in the banking industry. 15 As time went by she continued to suffer pain in both her knees. In December 1998 she again saw Dr Berton who felt that she required further surgical intervention and as a consequence on 27 January 1999 she was admitted to the Warners Bay Private hospital where Dr Berton carried out a procedure of bilateral arthroscopic chrondroplasty debridement. 16 Following that procedure she suffered an infection to her knees which required the administration of antibiotics. She sought a second opinion from Dr B Jones, orthopaedic surgeon, who, on 15 February 1999, opined that the plaintiff had a closed injury to both her patellae with articular cartilage degeneration. 17 She returned to Dr Berton's care in February 1999. At that time the infection in her knees had cleared. Dr Berton advised the plaintiff to undertake hydrotherapy which she did. At that time he felt that the plaintiff was likely to undergo further surgical procedures to her knees. 18 Pain continued in her knees. In September 1999 she consulted another orthopaedic surgeon, Dr R Smith who was of the view that the plaintiff would ultimately develop severe osteoarthritis in both knees and would require the procedure of knee replacement to be carried out. 19 Dr Berton is of the same view as Dr Smith. The procedure is generally described as being a knee replacement. While this is a matter for the future, Dr Berton is of the view that her need for knee replacement is in the order of 1:4. Not only that, he is of the view that both her knees are likely to require tibial osteotomy in the short to medium term. He is of the view that her permanent loss of use of both her legs at or above the knee is in the order of 30%. 20 There is nothing in the medical reports tendered on behalf of the defendant which is contrary to the views expressed by Drs Smith and Berton as to her future management and Dr Berton's view as to the extent of her disability as relating to her knees. 21 Prior to the subject accident the plaintiff had suffered occasional pain in her knees. This had caused her to seek advice from a general practitioner. The advice tendered to her was to reduce her netball playing activities and to loose weight. However, there is nothing in the medical evidence to suggest that her present problems, as far as her knees are concerned, are related to anything else but the subject accident. 22 The plaintiff's complaints of neck and low back pain are the subject of contest in this matter. As I have said, she has been principally under the care of Dr Hollo in relation to these matters. She has also received treatment from a Dr D Pacey, another rehabilitation specialist. I should add that Dr Pacey has also expressed views relating to the condition of the plaintiff's knees which is on all fours with those expressed by Drs Smith and Berton as far as her views go. 23 The treatment afforded the plaintiff for her complaints of neck and low back pain were initially treated in a conservative fashion. However, in August 1997 Dr Hollo advised the plaintiff to undergo injections to her occipital region which are known as zygapophysial joint blocks. 24 She underwent a number of these procedures in August, September and October 1997. These produced some immediate relief. Again in November 1997 Dr Hollo performed another of these procedures. Once more she received temporary relief to her symptoms from it. In February and April 1998 these procedures were repeated. She has had further such procedures administered by Dr Hollo in September 1998. Again, giving rise it seems, to short term relief. 25 On viewing the radiological evidence and considering the plaintiff's clinical presentation, Dr Hollo is of the view that the plaintiff is suffering from what she described as C2/3 cervical segmental dysfunction. 26 Dr Hollo has suggested that the plaintiff should undergo a procedure which is known as percutaneous radiofrequency neurotomy. Indeed, the plaintiff was scheduled to have this procedure carried out on 17 June 1999. Because of doubts entertained by the plaintiff as to the side effects which might flow from the administration of this procedure she decided not to proceed with that planned treatment. Her view is that she would prefer to wait until medical science can provide her with a more definite prognosis as to the side effects which might flow from this treatment. However, on the other hand she stated, in evidence, that in the future she may well undergo that procedure. 27 In all Dr Hollo administered some six cervical diagnostic block to the plaintiff. She continued to complain of neck pain. 28 Dr Tarrant, who saw her on behalf of the defendant, does not suggest that the plaintiff's complaint of neck pain is anything but genuine. He is sceptical of the need for further invasive treatment of her neck and feels that conservative measures are more likely to be of benefit to her. 29 Likewise Professor Jones, who saw her, does not deny that the plaintiff suffers neck pain. Like Dr Tarrant, Professor Jones is somewhat sceptical as to the value of the invasive procedures which are being carried out. He concluded as follows: "On balance I am concerned regarding the plethora of opinions regarding Ms Miller's treatment and her continuing to seek such invasive therapies. As to whether they will ultimately be in her best interests is a moot point. She is also exhibiting complications from such treatments, and perhaps her being taught relaxation techniques and management of her pain by appropriate analgesics would be an alternative which her own doctors might contemplate." 30 I turn then to the plaintiff's complaint of low back pain. Dr Hollo has expressed the view that the plaintiff has a lumbar segmental dysfunction affecting either the L4/5 or the L5/S1 levels. While the treatment the plaintiff has received for her low back pain has been largely conservative she underwent an L5 sinuvertebral nerve block on 7 August 1998. She had a good response to that treatment and Dr Pacey whom, as I have said, has also been seeing the plaintiff, expressed the view that that result indicated that her back pain arose from damage to her lumbo-sacral disc. She underwent a further L5 block on 29 October 1998 and again that provided her with some relief. 31 Dr Hopcroft, orthopaedic surgeon, has seen her on a number of occasions over the years. He, in relation to both her neck and back pain, does not give any specific diagnosis of what is causing that pain but does not suggest that it is anything but genuine. 32 Again, neither Professor Jones or Dr Tarrant suggest otherwise. However, as is the case with the plaintiff's complaint of neck pain they are concerned about the matter of over-servicing. 33 Additionally, the plaintiff suffers from a psychological reaction to her problems which involve, inter alia, her suffering from panic attacks while travelling as a passenger in a motor car. She was treated in this regard by Lyn Porritt, psychologist. It seems that Lyn Porritt's treatment has been successful in relation to the panic attacks and was of assistance to the plaintiff generally in relation to her overall condition. However, it may well be that she will require further assistance in terms of this discipline in the future. 34 The plaintiff's residual scarring has been assessed by Dr C Howe, plastic surgeon. In December 1998 he reported that there was significant scarring on both knees which are in fact obvious even to a lay observer. On the right side they consist of a vertical 40mm scar lateral to the patella and another 40mm scar on the infra-patella region. On the left side there is a 30mm oblique scar over the patella and a 20mm and 30mm L shaped scar on the infra-patella border and a 40mm broad surgical scar on the left lateral patella. 35 He felt that this scarring constituted a moderate cosmetic disability/disfigurement and is of the order of 15% of the worst case. He does not advise any further treatment for these scars and his evidence was not the subject of any contest. 36 I turn then to the plaintiff's work history. As I have said at the time of her accident the plaintiff was employed as a customer service manager. She had been working with Westpac since December 1982 and advanced through their ranks to the position she occupied at the time of the accident. She had attained the Higher School Certificate in 1982 and joined Westpac shortly after having completed her studies. 37 As already noted she was initially off work until 14 October 1996 when she resumed working restricted hours. These hours were increased in November 1996 but she was off work from 7 November 1996 until 17 February 1997. On her resuming work in February 1997 the plaintiff's hours of work were increased. Over the years the number of hours she has worked have increased until from 7 August 1998 she commenced full duties. 38 When she returned to full time duties in August 1998, she returned as relief manager. She is presently the manager of the Mayfield branch of the bank. She found herself exhausted at the end of a day's work. She retires to bed early and her social life has been severely restricted. 39 Prior to her injury as I have already mentioned she was a netball player and she also was a keen snow skier. Since her accident she has not participated in any of her former sporting pursuits and particularly having regard to the condition of her knees I am of the view that she will not in the future, engage in any sporting activities. 40 Her future with the bank is by no means certain. Tendered in evidence were letters which had been circulated to staff members from the Westpac Chief Executive Officer and State Manager indicating that in the future staff cuts will occur. On the open labour market the plaintiff in the light of her disabilities may well have difficulties in obtaining employment should she be retrenched from Westpac. All of this of course falls within the bounds of possibility rather than probability. 41 I turn then to the assessment of damages. The first matter which is to be considered is damages for non-economic loss pursuant to s 79A of the Motor Accidents Act 1988. For accidents occurring after 26 September 1995 the maximum amount presently awarded is $273,000. Having regard to the nature of the plaintiff's injuries, her loss of enjoyment of life and the pain she has suffered and will suffer in the future together with the possibility of further surgical intervention, I assess her as being a person who has lost 50% of the most extreme case. That quantifies as $136,500. 42 The plaintiff's out-of-pocket expenses have been agreed, on a mathematical basis between the parties, at $67,490.95. As I have already noted both Dr Tarrant and Professor Jones, and to a certain degree, Dr Hopcroft, are sceptical as to the amount of treatment the plaintiff has received. It has been contended on behalf of the defendant that it would not be reasonable for the defendant to have to meet the full amount of the out-of-pockets incurred. 43 However, I am of the view that the plaintiff has been acting reasonably in accepting the advice of her medical advisers. Indeed, as I have noted above the plaintiff has deferred undergoing the invasive radiotherapy prescribed by Dr Hollo. In these circumstances I am of the view that the plaintiff is entitled to the full amount of out-of-pockets incurred and I thus award the sum of $67,490.95 under this head. 44 The plaintiff's past wage loss came to a net amount of $27,224.42. In addition to this net amount there is a sum of $5,473.10 representing taxation exactions made by her employer when compensation payments were made. (Fox v Wood component) In all the plaintiff's total past economic loss amounts to $32,697.52 and I allow this amount. 45 I turn then to the question of future medical expenses. Dr Berton has stated that the cost of bilateral tibial osteotomies will be $20,000. There being a 1:4 chance that the plaintiff may require total knee replacements I believe it is reasonable to allow an additional sum of $10,000 for the 1:4 chance of this procedure being undertaken and referred to by Dr Berton. I believe there is a real doubt that the plaintiff will undergo the percutaneous radiofrequency neurotomy treatment suggested by Dr Hollo. The cost of the five procedures suggested by Dr Hollo would be $33,000 odd. Because I believe that this treatment falls into the category of a possibility rather than a probability I would allow the sum of $10,000 only in this regard. 46 I believe it is reasonable that the plaintiff should see a general practitioner once a week. The present cost on an actuarial basis using the 5% tables and allowing the plaintiff her life expectancy of 47 years the sum of $8,538.12 emerges. 47 In the light of her symptoms I believe it is reasonable to allow one and a half visits per year to specialists for the future. Again, using the same mode of calculation the sum of $2,903.73 emerges. 48 It seems plain that the plaintiff will have to have physiotherapy treatment. Again using the same mode of calculation and having regard to its frequency the sum of $57,690 emerges. 49 In the light of the evidence I would allow, again using a similar basis for calculation, the sum of $12,201.43 for remedial massage therapy. 50 A claim is made for acupuncture. In the absence of support for this treatment from Dr Berton and the observations made by Dr Tarrant and Professor Jones I would not allow this head. 51 The plaintiff continues to require hydrotherapy and again using the similar basis of calculation the sum of $36,537 emerges. 52 As far as future pharmaceutical expenses are concerned using a similar calculation based upon the plaintiff's present use of medication the sum of $6,297.82 emerges. 53 A claim was also made for the cost of a spa bath to assist the plaintiff in undergoing hydrotherapy. While apparently this device is movable (the plaintiff does not own the premises in which she lives), I am of the view that it would not be reasonable in the circumstances to allow this item. The plaintiff can obtain hydrotherapy, as she has in the past, from facilities which appear to be readily available and it is for this reason I do not accept that this is an item which should be the subject of an award of damages. 54 I turn then to the question of future economic loss. This head of damage is complicated by a number of features. 1. There is the shadow of retrenchment to which I have earlier referred. 2. Dr Berton has advised that she should undergo bilateral tibial osteotomies. She would require some three to six months off work. 3. She has lost some $26 per week compared to an employee of similar standing with her employer. 4. Her injuries may result in any event in her retiring earlier from the work force than she otherwise would. 5. In any event it may be at some stage in the quite near future her injuries may result in her undertaking part time work which would result in her suffering a loss of income. 55 On behalf of the plaintiff submissions were made claiming that on an actuarial basis the plaintiff should be awarded some $237,000 for future economic loss. In view of the massive uncertainty which results from the factors I have just detailed, I am of the view that this is not a case where a mathematically precise mode of calculation can be made. It seems to me that this is a case where I should take a global approach. This I do and I award the sum of $150,000 under this head. 56 I tabulate the plaintiff's damages as follows: Non-economic loss 136,500.00 Out-of-pocket expenses 67,490.95 Past wage loss 32,697.52 Future medical expenses 164,168.10 Future economic loss 150,000.00 550,856.57 57 I shall defer making any orders for judgment or any order for costs until after the delivery of these reasons. I do this because I would wish the parties to check the mathematics involved in the assessment and costs are always a matter for argument. Last Modified: 12/03/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.