Wang v Chen & Anor [2000] NSWSC 48

New South Wales Supreme Court

CITATION : Wang v Chen & Anor [2000] NSWSC 48 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20075/97 HEARING DATE(S) : 16 February 2000 JUDGMENT DATE : 22 February 2000

Yu Long Wang (Plaintiff) PARTIES : Song Nian Chen (First Defendant) Drive-a-Way Rent-a-Car (Second Defendant) JUDGMENT OF : Studdert J

COUNSEL : Ms E. Welsh (Plaintiff) Mr A. Reoch (Defendant) SOLICITORS : Brydens Law Office (Plaintiff) Connery & Partners (Defendants) LEGISLATION CITED : Motor Accidents Act CASES CITED : Stevens v Head (1992) 176 CLR 433 DECISION : See para 42

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Tuesday 22 February 2000 20075/97 YU LONG WANG v SONG NIAN CHEN & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff, Yu Long Wang, seeks damages from the first defendant, Song Nian Chen, and the second defendant, Drive-a-Way Rent-a-Car. The plaintiff claims to have been injured in a motor vehicle accident in Tasmania on 5 January 1995 when travelling as a passenger in a car being driven by the first defendant and which was owned by the second defendant. 2 Liability was not admitted but Mr Reoch, who appeared for the defendant, did not address on this issue at the close of the evidence. The only evidence on liability was the evidence given by the plaintiff and I am satisfied, having heard her account of what happened, that negligence has been proved. 3 The plaintiff went to Tasmania shortly before the accident for a holiday. The first defendant was her friend and companion on that holiday and on the day of the accident the first defendant was driving the second defendant's vehicle on the A5 roadway between Launceston and Hobart and was travelling towards Hobart where he and the plaintiff were booked on a plane to travel back to New South Wales. The plaintiff said that the car was proceeding along a roadway with loose rocks on the surface. She said that the car hit a pole on the side of the road at a speed of approximately 100 kilometres per hour. After that the car jumped up and down before it entered a ditch. 4 The plaintiff was cross examined on a motor accident personal injury claim form which she completed. In that claim form the plaintiff, in describing the accident, asserted that the car was being driven "at about 50 to 60 kilometres per hour". Cross examined about that, the plaintiff said that the stated speed in the claim form was wrong but that the speed was understated to protect the driver against trouble with the authorities. That the false information as to speed was given by the plaintiff in the claim form is not to the plaintiff's credit but nevertheless, on balance, I accept the evidence that the plaintiff gave in Court as to the speed of the car. The first defendant was not called and I am therefore left with the evidence only of the plaintiff as to what happened. That the car left the road in the circumstances the plaintiff described affords prima facie evidence that the driver was negligent in failing to steer clear of the post and in failing to keep the vehicle on the roadway and under control. Accordingly, I am satisfied on the evidence that negligence has been established. 5 This action has been brought in New South Wales on an accident that happened in Tasmania. Counsel were agreed that damages are to be assessed in accordance with the law in New South Wales and that the assessment is accordingly governed by the Motor Accidents Act. This approach acknowledges the effect of the decision of the High Court in Stevens v Head (1992) 176 CLR 433 and I approach my task upon the basis that the quantification of damages is governed by the provisions of the Motor Accidents Act (NSW). 6 The plaintiff was born in China on 17 January 1960 and is a single woman who came to Australia in February 1991. Before leaving China, the plaintiff completed a training course in nursing but, having arrived in Australia, the plaintiff did work in a factory and in several fruit shops. Then in August 1994 the plaintiff obtained a part-time position as a receptionist and nurse for a general practitioner, Dr Ng. In this position the plaintiff worked for twenty-four hours a week, doing four hours work from Monday to Saturday inclusive. From 24 September onwards, the plaintiff was also working at a fruit shop known as "Adam's Apple" and worked there for approximately twenty hours per week, working eight hours on Thursday afternoon and evening and all day on Sundays. The plaintiff was working in these two occupations up to Christmas time 1994 when she went on holidays. It was on these holidays, of course, that the accident happened. 7 The plaintiff said that she experienced severe pain in the chest and in the whole of the back immediately after this accident. At the time the accident occurred the plaintiff had been wearing a seatbelt. The plaintiff was taken by ambulance to the Launceston General Hospital and the hospital report records that on presentation the plaintiff was in obvious distress and was complaining of a painful chest area. X-rays were taken of the lumbo-sacral spine, the thoracic spine and the cervical spine (presumably because the plaintiff complained of symptoms in those areas as well), but the only fracture was that of the sternum and the fracture was described as "a fine wedge compression fracture of the mid body of the sternum". The plaintiff was not kept in hospital but was discharged after several hours and proceeded back to Launceston and returned to Sydney by plane the same day. 8 The plaintiff described pain and distress on the plane and said that she vomited four times whilst on the plane. The plaintiff said that, to begin with, she had pain in the neck and that the pain extended to below the level of the shoulder blades. The plaintiff said that her chest was very sore and she experienced pain when breathing. Her sleep was disturbed because of pain in the chest and in the back. The plaintiff was however able to return to work at the doctor's surgery on 16 January 1995, one week later than expected. The plaintiff said that she did not return to the fruit shop work, which involved more physically demanding activity, until one to two months later. 9 According to the plaintiff, for approximately one month after her return to New South Wales she wore a soft collar. In summary, the plaintiff said that the breathing difficulty continued for three months and described her symptoms in the chest (apart from the breathing difficulty) and in the neck and the thoracic region as being at the same level for the first six months. Symptoms in the chest and ranging from the neck down to the base of the shoulder blades have persisted to a lesser degree up to the present time. 10 When the plaintiff returned to work after this accident she said, and I accept, that she had difficulty with the heavier work at the fruit shop where her duties required working as a cashier but also required her to do packing. The plaintiff said, and I accept, that she had difficulty handling the packing of oranges and potatoes. Nevertheless, the plaintiff persisted in the fruit shop work until September 1995 when there was some dispute when she was called upon to dismantle and reassemble an orange juice machine. The plaintiff protested that this work was too heavy for her, and when called upon to do it she resigned. Significantly, at the time of resignation the plaintiff was pregnant and later gave birth to a son on 16 March 1996. Having resigned from the fruit shop work the plaintiff carried on working in the doctor's surgery until 10 February 1996. 11 The plaintiff said, and I accept, that symptoms persisted in the neck and upper back up to the time of the birth of the child and indeed that they have persisted since. I accept that these symptoms made it more difficult than it otherwise would have been for her to lift and carry her son, and that they became more apparent with some of her housework activities. 12 No doctor has given evidence before me in this case but a number of medical reports have been tendered. A reading of those reports indicate, broadly speaking, that the doctors qualified by the defendants have taken a different view of this case from the doctors qualified by the plaintiffs. The medical evidence in this case warrants close scrutiny, but the assessment of the plaintiff's evidence assumes fundamental importance because so much depends, as I see it, upon the assessment of the plaintiff's subjective complaints. 13 I propose to review briefly the medical evidence. 14 Following her return to New South Wales the plaintiff attended a medical centre at Burwood on a number of occasions between 6 January 1995 and 17 March 1995. The report from this surgery, which discloses that the plaintiff was seen by more than one doctor in her various attendances, records the plaintiff's complaints about her neck, thoracic spine and her chest and her conservative treatment in the form of medication and some physiotherapy. The report concludes that the plaintiff was seen again in November 1995 when it was recorded that the plaintiff did not want to see a specialist. 15 In fact the plaintiff has never had specialist treatment but there is evidence which I accept that the plaintiff had physiotherapy treatment and that she consulted Dr Ng for her back pain in August 1996, twice in October 1996 and again in November 1996. The plaintiff said, and I accept, that she saw Dr Tang for acupuncture treatment for her back on a number of occasions between December 1996 and November 1997. Indeed I find, having considered the letter from the Health Insurance Commission tendered as part of Exhibit L, that the plaintiff underwent sixteen sessions of acupuncture, the first on 29 November 1996 and the last on 20 February 1998. I am satisfied that this treatment was undertaken to address the plaintiff's symptoms referable to her injuries. 16 The specialist evidence in this case comes in the form of reports from doctors who were qualified for the purposes of the case. Dr Rivett saw the plaintiff in April 1999 and his opinion was as follows: "1. There is evidence of right facet joint strain in the neck, and some sub-occipital myofascial syndrome which may be causing the headaches. There is contusional myofascial syndrome in both infraspinatus muscles, and on the right shoulder there is trapezial strain or myofascial syndrome together with acromio-clavicular joint strain and bicipital tendonitis. 2. There is chronic strain at cervico-thoracic junction and the upper thoracic spine, and right paravertebral muscle strain. 3. There is lumbar ligamentous strain and sacro-iliac joint strain. There is no obvious neurological involvement from the back or neck. 4. There is residual inflammation in the region of a united sternal fracture." 17 The doctor did not consider treatment other than in the form of exercise. His assessment of the plaintiff's capacity for work was expressed as follows: "Mrs Wang is unfit for prolonged study involving postural strains on the neck, jogging and other sports and heavy lifting, excessive bending, prolonged sitting or standing, pushing, pulling or twisting."" 18 In the opinion of Dr Rivett: "Slow improvement is likely but this will be a matter of years rather than months." 19 The second specialist qualified in the plaintiff's case was Dr Tam. He also saw the plaintiff in April 1999. 20 Dr Tam puts the plaintiff's case at its highest. He expressed the following opinion in his report: "1. Miss Wang was involved in a motor vehicle accident on 5th January 1995 as a front seat passenger wearing a seatbelt when her rented vehicle loss [sic] control, hitting a pole and fell into a pit. 2. Her initial injuries included shock, seat belt injury to the anterior chest including a fine wedge compression fracture of the sternum, whiplash injury to the neck and strain injuries to the upper and lower back, and the shoulder girdles.