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. 3. Her continuing symptoms/disabilities/handicaps are outlined under the same heading. She has become dysfunctional in her daily living because of persisting sternal, neck, upper and lower back pain. She suffers chronic strain syndrome with significant psychological stress, with chronic anxieties and sleep disturbances. The chronic strain syndrome was caused by the MVA with multiple musculotendinous and ligamental tears with subsequent chronic strains, facet joint and likely disc injuries presenting with signs of paraspinal muscular spasms along the cervical, thoracic and lumbosacral spine with stiffness and restrictions of motion, and bilateral rhomboidal and supraspinatus muscle spasms. 4. Her work capacity is reduced to light duties. She is currently undertaking a degree course in Bachelor of Nursing at UTS. Her neck, back and shoulders are susceptible to overloading injuries with normal daily activities. 5. Her prognosis is fair. She needs psychological counselling to relief [sic] the chronic stress and phobia as well as to minimize the effects perpetuating the chronic strain syndrome to the neck and back." 21 For the defendant, reports were tendered from Dr Harvey and from Dr Gonski. 22 Dr Harvey saw the plaintiff in May 1997. Dr Harvey saw the only x-ray film presented by the plaintiff and he reported that this showed an undisplaced fracture in the upper part of the body of the sternum. The doctor accepted, following his examination, that the plaintiff had suffered a fracture of the sternum and that she could have suffered a ligamentous injury to the neck. Dr Harvey concluded that the plaintiff was fit to work at the doctor's surgery and would be fit to work as a shop assistant if motivated to do so. Indeed, Dr Harvey did not consider that the injuries had affected her capacity to lead a normal life in any way. Dr Harvey acknowledged that the plaintiff had subjective complaints of neck and low back pain but that there was no objective evidence of significant injury to the neck or the lower back. 23 Dr Gonski assessed the plaintiff in April 1999. He found no abnormalities on examination and had difficulty in reaching a diagnosis. He recorded that there were symptoms of tenderness over the sternum and that there were complaints of ill-defined pain in the neck and the back. Dr Gonski said by way of prognosis: "The prognosis should be good. The injury did not give the impression of being severe and if, in fact, she had a fracture of the sternum it must have healed up by now. There should be no deficits following this. She is quite able, in relation to the accident, to return to her normal work and, in fact, I believe she is doing that." 24 Whilst I did not gain the impression that the plaintiff understated her case, nevertheless I accept that she does have persisting symptoms which are referable to the injuries sustained in the accident. In my opinion, having regard to the assessment I have made of the plaintiff, Dr Rivett's opinion that the plaintiff suffered chronic strain at the cervico-thoracic junction and in the upper thoracic spine and the right paravertebral muscle is to be accepted. Dr Rivett's opinion also accounts for the persisting complaint referable to the sternum, a complaint which I regard as being of less significance than the complaint made as to the upper spine. It seems to me that in Dr Rivett's assessment is to be found an explanation for the persisting complaints that the plaintiff has made and which complaints I accept. 25 Accepting as I do the persisting complaints made by the plaintiff which I have identified, and accepting as I do Dr Rivett's explanation for them, I prefer that doctor's evidence to that of Dr Harvey and Dr Gonski. 26 So far as Dr Tam is concerned, his opinion was based upon a recorded history which is not supported by the plaintiff's evidence. The plaintiff did not complain in her evidence of "chronic unremitting pain in the chest, the shoulder blades, the thoracic spine and the lower back." Nor did she complain "that she has become dysfunctional in her daily living". Dr Tam's assessment was no doubt influenced by the history as he understood it, and since that history does not accord with the oral evidence of the plaintiff, again I prefer the assessment of Dr Rivett to that of Dr Tam. 27 It is now more than five years since the accident but I do not find that the plaintiff's symptoms will persist for ever. I accept the prognosis expressed by Dr Rivett and find that the plaintiff will slowly improve in the future but recovery will take years rather than months. Ms Welsh submitted that I should find that the recovery process will probably take a further five years and that seems to me to be a reasonable submission having regard to the view I have taken of the evidence in this case. I find that the plaintiff will gradually recover over the period of the next five years, by which time recovery should be more or less complete. 28 With the findings above expressed in mind, I proceed to assess damages. 29 Under s 79 of the Motor Accidents Act, the plaintiff is not entitled to damages for non economic loss unless I am satisfied that her ability to lead a normal life has been, or in the near future is likely to be, significantly impaired for a continuous period of not less than six months. Mr Reoch submitted that the plaintiff has not passed this threshold requirement and that no damages should be awarded for non economic loss but, having reflected upon the evidence, I prefer the contrary submission advanced by Ms Welsh. 30 I am satisfied that there has in the past been significant impairment of the plaintiff's normal lifestyle for a continuous period of more than six months. Indeed, it seems to me on the view that I take of the plaintiff's evidence, that her attendances for acupuncture, to which I earlier referred, reflect the continuance of significant impairment of the normal lifestyle throughout the period that the plaintiff underwent acupuncture treatment. I find that such a significant impairment began at the accident date and did not cease at any time before the need arose for the acupuncture treatment. 31 The damages to be awarded for non economic loss are, of course, to be determined acknowledging the restraints imposed in s 79, and in particular in sub-ss (2), (3) and (4). I regard this case as being well down the scale when considering what proportion of the maximum amount should be awarded for non economic loss, having regard to my assessment of the severity of the non economic loss. 32 I have concluded for the purposes of s 79 that having regard to the severity of non economic loss, the proportion of the maximum amount attracted is twenty percent and I therefore award for non economic loss the sum of $32,600.00. 33 The out of pocket expenses, excluding certain consultations with Dr Ng, were agreed at $613.05. There were a number of consultations with Dr Ng between August and November 1996 to which I made earlier reference. The defendant agrees on the cost of these consultations but not that such cost is recoverable. However, I am satisfied from the plaintiff's evidence that the consultations were held by reason of the plaintiff's persisting complaints in the thoracic spine and that the cost is recoverable. Accordingly I allow for out of pocket expenses the sum of $696.45. 34 This brings me to the claim for loss of earnings and loss of earning capacity. 35 The plaintiff is entitled to recover wages lost by reason of her inability to work for Dr Ng in the week commencing 9 January 1995. The income so lost is $245. In addition, however, the plaintiff is entitled to be compensated for the loss incurred by reason of her inability to return to work in the greengrocer's shop before she did. The plaintiff's evidence was that because of her symptoms she was unable to return to this work, involving as it did heavier work than that in the doctor's surgery, for a period of one to two months. No precise return date was established on the evidence, but I accept that her return to the greengrocer's shop was delayed because of the level of the plaintiff's symptoms and I propose to allow her wage loss for one month from this second occupation, and the loss for this period is $404. Accordingly, for the total wage loss I find that the plaintiff suffered in January and February 1995 I allow $649. 36 What allowance, if any, should be made to the plaintiff for the period from February 1995 to date? In particulars filed under Pt 33 r 8A it was claimed that but for this accident the plaintiff would have returned to gainful employment one month after her child was born, working as before in two occupations. On this basis a claim was expressed of an ongoing loss of $365 per week to date and continuing. The basis for such a claim was not established by the evidence and, very properly, Ms Welsh did not seek to argue that it was. 37 Dealing with the period prior to her son's birth, I am satisfied that the plaintiff would have stopped work before this event whether the accident had happened or not. Indeed such disabilities as I find that the plaintiff had after resuming work in early 1995 would not have prevented her from pursuing her work for Dr Ng. What prompted her to cease work for Dr Ng in February 1996 was the pending birth. So far as the more physically arduous work in the greengrocer's shop was concerned, I think it is more probable than not that the plaintiff would have given up this work before she stopped working for Dr Ng, regardless of whether she had been injured or not. Not only was the work for the greengrocer more demanding than the work for the doctor, but such work, taken in combination with the work in the surgery, meant that the plaintiff was required to work seven days per week, and such a workload would have become more and more taxing for the plaintiff as her pregnancy advanced. I consider it probable that by reason of the pending birth alone, the plaintiff would have ceased the more physically demanding second job by the end of 1995. However, notwithstanding Mr Reoch's submission to the contrary, the plaintiff's evidence satisfies me that the work that she was called upon to do on the orange juice machine in September 1995 was beyond her capacity by reason of her accident related symptoms, and that her inability to do this led to her loss of the position in the shop. I propose therefore to compensate the plaintiff for what she would have earned had she continued working in the shop until the end of 1995. The date upon which the plaintiff ceased working in the shop was 29 September 1995, and I therefore allow for a loss of $101 (her weekly pay in the shop) for thirteen weeks, a total of $1313. I will include that sum in my assessment. 38 The plaintiff has not been idle since her son was born. Although an unmarried mother with no family support in bringing up her son, the plaintiff enrolled at TAFE at the beginning of 1997 and thereafter did two computer courses. The plaintiff said that sitting at a computer caused pain in her upper back but the plaintiff nevertheless completed two computer courses before taking on a course in English in 1998. Then in 1999 the plaintiff began a nursing course at the University of Technology and is persisting in that course. Part of the nursing course has involved clinical practice, and the plaintiff said that in practical experience at Concord Hospital she found that assisting in supporting the weight of patients was exhausting and aggravated her upper back. The plaintiff intends to complete the course and to pursue a career in nursing, but has reservations as to whether she would be able to work in the general hospital environment and plans to do community nursing, which she perceives to be less physically demanding. There are two years of the course still for the plaintiff to complete. 39 The plaintiff did do three days work in a hospital in 1999 but otherwise has not sought gainful employment since she resigned from the employment of Dr Ng. 40 Since her resignation the plaintiff has had financial support by way of a sole parent pension, child endowment, a rent subsidy and child support from the father of her child. The plaintiff agreed that she has been receiving from these sources the sum of $400 per week nett which is as much as, if not more than, the plaintiff was earning from her combined sources before her resignation. 41 It seems to me that after her son was born, the plaintiff would have been physically capable of returning to work in a doctor's surgery on a full time basis had she chosen to do so and had such work been available. Other work would have been within the plaintiff's capacity provided it did not impose undue stress on her neck and upper back. The plaintiff is not to be criticised for her failure to obtain regular employment since February 1996, but neither is the plaintiff to be compensated for such failure. There was a need for the plaintiff to adjust to her responsibilities as a mother and thereafter the plaintiff chose to further qualify herself rather than to seek re-employment. I am not satisfied in all the circumstances that but for the consequences of this accident the plaintiff would have sought to do other than what she has done between the birth of her son and the present time and I am not persuaded that the plaintiff should be awarded any more than the sums of $649 and $1313, previously mentioned for past loss. 42 This brings me to the future. 43 The plaintiff will not complete her course for two years and in that period it is unlikely that the plaintiff will seek any work. However once the plaintiff's course is complete and the plaintiff seeks employment in the nursing profession, it seems to me that she will be disadvantaged on the labour market for so long as the symptoms I find persist are continuing. Once qualified there will be a further period of some three years in which the plaintiff will be disadvantaged on the labour market in seeking suitable employment. In that period the plaintiff may well experience difficulty with heavy lifting, repeated bending and other activities that impose significant stress on her neck and her thoracic spine. There may therefore be some employment opportunities which, but for her persisting symptoms, the plaintiff would have been able to pursue and which, by reason of them she is unable to take. Ms Welsh asked me to provide some buffer allowance to reflect this future limitation and I regard it as appropriate to do so. In doing so I have regard to the award rates for nurses which were made available by counsel. I propose to allow in this regard the sum of $13,000, recognising that the plaintiff is unlikely to seek any work within the next two years. 44 It is not possible to arrive at an appropriate provision as a mathematical exercise because it involves providing for what is anything but certain. However, in testing this allowance of $13,000, I note that it approximates to providing an allowance of $100 per week for three years, using the five percent tables and deferring the start of the provision of such allowance for two years. This test does not cause me to vary the allowance at which I have arrived. 45 I summarise the assessment of damages in this case then as follows: Damages for non economic loss $32,600.00 Out of pocket expenses 696.45 Loss of wages 1,962.00 Allowance for future loss of earning capacity 13,000.00 $48,258.45 46 I publish this assessment to afford the parties the opportunity to make any appropriate submissions as to interest and costs. The matter may be relisted for this purpose by arrangement with my associate. ********** Last Modified: 09/25/2000 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.